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Court of AppealPartially AllowedCivil Appeal 12 of 2008· [2012] KECA 57 (KLR)

John Gichobi Ndegwa v Republic & 3 others [2012] KECA 57 (KLR)

Court of Appeal of Kenya
1 November 2012
EGE. M. GithinjiRNR. N. NambuyeWKW. Karanja
1,571 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that judges must consider every filed affidavit before ruling, even when a party's lawyer is absent from court.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Githinji, Nambuye and Karanja, JJAA) allowed an appeal against a High Court (Khaminwa, J) decision of 25th June 2007 granting an order of certiorari quashing the decision of the Land Disputes Tribunal, Central Division, Kirinyaga in a land dispute between the appellant and Grace Gachui Kathei over land title Inoi/Kamondi/615. The tribunal had awarded the appellant one acre out of a sub-division registered in the respondent's name; the award was adopted as a judgment of the Kerugoya Resident Magistrate's Court, and the respondent's earlier High Court appeal against it was summarily rejected. The respondent then sought certiorari in the High Court under the Law Reform Act/Order LIII, first obtaining ex parte orders extending time and granting leave. When the certiorari application came for interparties hearing, the appellant's counsel holding brief sought an adjournment which was rejected; counsel did not address the court, and the judge delivered an extempore judgment quashing the tribunal's award for excess of jurisdiction without referring to the appellant's filed replying affidavit. The Court of Appeal held that the failure to consider the replying affidavit denied the appellant a fair hearing and that the proper remedy was a rehearing. It declined to decide the remaining grounds on timeliness and extension of time, holding it improper to do so without a first-instance determination, set aside the order of certiorari, and directed that the certiorari application be heard afresh by a different Judge, with costs of the appeal to be costs in that application.

Key legal issues

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01

Fair hearing in judicial review proceedings

Holding

The High Court denied the appellant a fair hearing by delivering an extempore judgment without considering his filed replying affidavit, effectively proceeding ex parte.

Reasoning

Counsel holding brief applied for an adjournment without the case file; the adjournment was rejected and counsel did not address the court. The record does not show his reply. The judge was nonetheless required to consider the replying affidavit already on file even in counsel's absence. The extempore judgment made no reference to it. The proper remedy is an opportunity to be heard on the matters raised in the affidavit.

p. 3
02

Scope of appellate determination where antecedent issues were not decided below

Holding

The Court declined to determine the remaining grounds on the competence of the leave application and the extension of time, remitting them for fresh determination.

Reasoning

Those matters were raised in paragraph 2 of the replying affidavit but were never considered by the High Court, so the Court of Appeal lacked the benefit of a first-instance determination. Expressing views on them without such a determination would be improper. The rehearing allows the appellant to raise the issues and the High Court to determine them judicially.

p. 3

Legal principles established

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  • A court must consider a party's filed replying affidavit even where that party's counsel is absent, failing which the party is denied a fair hearing and the proper remedy is a rehearing.
  • Where an error in the proceedings is attributable to the court and not to either party, neither party should bear the costs.

Court orders

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  1. 1.The order of certiorari granted by the High Court on 25th June, 2007 is set aside
  2. 2.The application for an order of certiorari dated 7th December, 2006 and filed on 14th December, 2006 shall be heard afresh by a different Judge
  3. 3.The costs of this appeal shall be costs in the said application

Authorities

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Legislation

  • Civil Procedure RulesOrder LIII Rules 1(2), 3 and 4
  • Civil Procedure RulesOrder XLIX Rule 5
  • Registered Land Act
  • Civil Procedure Act
  • Law Reform Act
On appeal from
High Court of Kenya at Embu
Misc. Appl. No. 123 of 2006
Jurisdiction invoked
First appeal / appeal from the High Court exercising judicial review jurisdiction under the Law Reform Act (Cap 26) and Order LIII of the Civil Procedure Rules (specific provision not stated in the judgment)

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, "John Gichobi Ndegwa v Republic & 3 others [2012] KECA 57 (KLR)", Case Analysis (2012). Civil Appeal 12 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/57/eng@2012-11-01

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