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Court of AppealPartially AllowedCivil Application No. 344 of 2009· [2010] KECA 410 (KLR)

Attorney General v Samuel Chege Gitau & 283 others [2010] KECA 410 (KLR)

Court of Appeal
26 February 2010
2,525 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a 284-plaintiff lawsuit so an appeal can decide whether the Attorney General can question plaintiffs about expired time limits.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a notice of motion by the Attorney General under rule 5(2)(b) of the Court of Appeal Rules, seeking certification as urgent, a stay of proceedings in Nairobi H.C.C.C. No. 548 of 1995, and a stay of execution of the orders of Nambuye J of 15th August 2008, pending the hearing of Civil Appeal No. 79 of 2009. The underlying suit, filed in 1995 with ex parte leave granted by Aluoch J, was brought by 21 former Kenya Air Force officers (later enlarged to 284 plaintiffs) seeking retirement benefits and damages for allegedly unlawful termination of service, wrongful arrest and false imprisonment dating to March 1983. At trial, the Attorney General's application to cross-examine the first plaintiff on limitation was dismissed by Nambuye J, who relied heavily on Ojwang' J's earlier joinder ruling. The Court of Appeal, comprising O'Kubasu, Onyango Otieno and Visram JJA, applied the twin rule 5(2)(b) principles from Reliance Bank Ltd vs Norlake Investments Ltd. It held the appeal arguable on whether a defendant may cross-examine on the circumstances of an ex parte leave order and plead limitation, and that refusing the stay would render any success nugatory. The court stayed the High Court proceedings until the appeal is determined, directed the appeal be heard on a priority basis given the age of the suit, refused stay of execution because the orders under appeal were negative orders directing nothing to be done, and ordered the costs of the motion to abide the appeal.

Key legal issues

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01

Arguability of the appeal under rule 5(2)(b)

Holding

The appeal is arguable because whether a defendant may challenge, by cross-examination at trial, an ex parte order granting leave to sue out of time, and plead limitation, is a contested question of law

Reasoning

The court identified the central legal question as whether a plaintiff who obtained ex parte leave to file suit outside the limitation period can be cross-examined on the circumstances of that grant when the defendant pleads limitation. Counsel for the applicant argued the point was arguable; the respondents said limitation is a legal issue requiring no cross-examination. The court found the point arguable without deciding it finally.

p. 4
02

Nugatory value of the appeal if stay is refused

Holding

If the hearing proceeded and the appeal later succeeded, restoring the right to cross-examine, the success would be nugatory because the suit would already have been heard and determined

Reasoning

The court reasoned that without a stay the trial would continue to judgment without the cross-examination on limitation. If the appeal then succeeded and the right to cross-examine was restored, the victory would be pyrrhic since the proceedings would have concluded without that evidence, making the appellate success meaningless.

p. 4
03

Scope of Ojwang' J's earlier ruling and res judicata on limitation

Holding

Ojwang' J, in the joinder application, made comments on limitation but made no orders on it; that issue was therefore not conclusively decided by him

Reasoning

The court reviewed the orders made by Ojwang' J on the joinder application and observed that although comments were made on limitation and compliance with section 13A of the Government Proceedings Act, no orders were made on those issues, which was appropriate given the application concerned only joinder of parties. The trial court's heavy reliance on that ruling was therefore questionable.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy two tests: that the appeal (or intended appeal) is arguable, and that if the application is refused and the appeal succeeds, its success will be rendered nugatory
  • Stay of execution cannot issue in respect of a negative order which directs nothing to be done; only proceedings or positive orders may be stayed
  • Whether a defendant may cross-examine a plaintiff, who filed suit out of time under an ex parte order granting leave, on the circumstances of the grant of that leave in support of a limitation defence, is an arguable issue fit for appeal

Court orders

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  1. 1.The proceedings in the High Court at Nairobi Civil Suit Number 548 of 1995 are stayed till Civil Appeal No. 79 of 2009 is heard and determined
  2. 2.The Civil Appeal No. 79 of 2009 be fixed for hearing at the Registry on priority basis
  3. 3.The costs of the notice of motion will abide the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rules 10(2) and 22
  • Civil Procedure Act (Cap 21)Sections 3A and 63(e)
  • Government Proceedings Act (Cap 40)Section 13A
  • Limitation of Actions Act (Cap 22)Sections 27, 28 and 29
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Reliance Bank Ltd vs. Norlake Investments Ltd
    (2002) 1 EA 227 (CAK)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 548 of 1995 (originating from H.C.C.C. No. 40 of 2003 references in the record)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Attorney General v Samuel Chege Gitau & 283 others [2010] KECA 410 (KLR)", Case Analysis (2010). Civil Application No. 344 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/410/eng@2010-02-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.