City Council Of Nairobi v Barclays Bank Of Kenya Limited [2013] KECA 177 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a council cannot prosecute a bank for failing to paint its premises because no written law actually makes that a criminal offence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether failure to paint or repair premises constitutes an offence of nuisance under sections 115-120, and specifically section 118, of the Public Health Act
- 2.Whether non-joinder/non-service of the notice of motion on the magistrate's court under Order 53 Rule 3(2) of the Civil Procedure Rules rendered the judicial review proceedings a nullity
Key legal issues
#Whether failure to paint/repair premises constitutes the statutory nuisance offence under the Public Health Act
It does not; sections 115-120, and specifically section 118, do not define nuisance or make failure to repaint a building an offence, and no evidence showed such failure injurious to health.
The Court perused sections 115 to 120 of the Public Health Act as urged by counsel for the Council and found no definition of nuisance nor any provision criminalising failure to repaint a building. No medical officer's evidence established that the alleged failure was injurious or dangerous to health. Since an offence must be defined by law with all its ingredients, the charge sheet did not disclose an offence and certiorari was properly granted.
Effect of non-service of the judicial review notice of motion on the magistrate's court
Order 53 Rule 3(2) required service, but the omission caused no prejudice and did not render the proceedings a nullity because the underlying charge sheet was itself defective and quashed.
The Court accepted that Order 53 Rule 3(2) applied since the certiorari order sought to quash proceedings before the magistrate's court, which ought to have been served. However, the substance of the matter was that the charge sheet was found defective and quashed. The procedural omission occasioned no invalidity or prejudice, so the High Court's refusal to nullify the motion was upheld.
Legal principles established
#- An offence must be defined by law setting out all its ingredients before a valid charge can be laid; a charge founded on conduct not defined as an offence is fatally defective.
- Where the object of a judicial review notice of motion is to quash proceedings in a subordinate court, it must be served on the presiding officer of that court under Order 53 Rule 3(2), but non-service that causes no prejudice does not render the proceedings a nullity.
Court orders
#- 1.Appeal dismissed in its entirety as lacking any merit
- 2.Appellant to pay costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Civil Application No. 1261 of 2005
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (Appellate Jurisdiction Act / Constitution; not expressly stated in the judgment)
Relief refused
#Appellant's challenge to the finding that failure to paint did not constitute an offence under the Public Health Act
No section of the Public Health Act defines nuisance or makes failure to repaint a building an offence injurious to health
Appellant's contention that non-joinder/non-service on the magistrate's court rendered the judicial review motion a nullity
The omission did not constitute prejudice or invalidate the proceedings since the charge sheet itself was defective and was quashed
Costs
The appellant will pay costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is trite law and a principle in criminal prosecutions that an offence must be defined by law, setting out all its ingredients in order for a valid charge to be laid.
We are unable to find in any of them, and specifically Section 118, where nuisance is defined or that an act of failure to repaint a building constitutes a nuisance, the same being injurious and dangerous to health.
In sum we dismiss this appeal in its entirety as lacking any merit. The appellant will pay costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Hotels and Allied Workers Union v Attorney General & 6 others [2015] KEELRC 278 (KLR)[2015] KEELRC 278 (KLR)6 Nov 2015followed
- KENYA HOTELS & ALLIED WORKERS’ UNION v SERENA BEACH HOTEL (MOMBASA) [2007] KEELRC 14 (KLR)[2007] KEELRC 14 (KLR)11 Sept 2007
Cite this brief
#Cite this brief
Caselaw, "City Council Of Nairobi v Barclays Bank Of Kenya Limited [2013] KECA 177 (KLR)", Case Analysis (2013). Civil Appeal No. 90 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/177/eng@2013-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.