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Court of AppealAllowedCivil Appeal 196 of 2007· [2013] KECA 323 (KLR)

Cornelius Michubu M\'Itabathi v Godfrey Bariu & 2 others [2013] KECA 323 (KLR)

Court of Appeal of Kenya
16 May 2013
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
1,411 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that judges can only summarily throw out appeals in the clearest cases—appeals raising genuine legal questions must get a full hearing.

What this practically means

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Executive summary

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The appellant erected a commercial building on plot Maua Township/4; the land in front served as parking, drainage and entrance. In 1998 he learned that Maua Municipal Council had surveyed and allocated that land as plot No. 79 Maua Township to the 1st and 2nd respondents. He sued in the Senior Resident Magistrate's Court at Maua seeking a permanent injunction, and a temporary injunction issued in June 1999. The suit was never heard; the respondents' application of 8th January 2004 was stood over generally in February 2004, and in August 2006 they applied for dismissal of the suit for want of prosecution, which the magistrate dismissed on 22nd November 2006. The appellant appealed to the High Court at Meru, where Lenaola J summarily rejected the appeal under section 79B of the Civil Procedure Act on 3rd July 2007. The Court of Appeal (Visram, Koome and Otieno-Odek JJA) framed a single issue: whether the judge exercised his discretion under section 79B properly. Applying Mbogo v Shah on appellate interference with discretion, and Nzioka v Kitusa and Mashere v Walusala on the sparing use of summary rejection, the Court held that the appellant's ground - that a suit cannot be fixed for hearing while an interlocutory application is pending - was a substantial question of law that could only be determined at a full hearing. The judge therefore misdirected himself. The appeal was allowed, the High Court's order of 3rd July 2007 was set aside, and the appellant's High Court appeal was ordered admitted and determined according to the law.

Key legal issues

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Whether summary rejection of an appeal under section 79B was proper where the memorandum of appeal raised a substantial question of law

Holding

The ground that a suit could not be fixed for hearing while an interlocutory application was pending was a substantial ground warranting admission of the appeal; the High Court judge misdirected himself in summarily rejecting it.

Reasoning

The jurisdiction under section 79B is discretionary and its exercise is reviewable only where the judge misdirected himself, misapprehended the law, or ignored relevant matters. Relying on Nzioka v Kitusa and Mashere v Walusala, the Court held the power must be used sparingly and only in the clearest cases. The appellant's memorandum raised a substantial issue of law - whether a pending interlocutory application precluded fixing the suit for hearing - which bore on the validity of the dismissal for want of prosecution, so the appeal should have been admitted for hearing.

p. 3

Legal principles established

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  • The power of summary rejection of an appeal under section 79B of the Civil Procedure Act must be exercised sparingly and only in the clearest cases, not where the memorandum of appeal raises substantial grounds of law.
  • An appellate court will not interfere with a judge's exercise of discretion under section 79B unless the judge misdirected himself, misapprehended the law, or failed to take into account a relevant matter, resulting in a wrong decision or injustice.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The order of the High Court dated 3rd July 2007 summarily rejecting the appellant's appeal is set aside
  3. 3.The appellant's appeal filed in the High Court is to be admitted and determined according to the law

Authorities

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Legislation

  • Civil Procedure Actsection 79B
  • Civil Procedure Actsection 79C

Cases cited (3)

  • Mbogo & Another vs. Shah
    (1968) E.A. 93
  • Nzioka vs. Kitusa
    (1984) KLR 487
  • Mashere vs. Walusala
    (1986) KLR 503
On appeal from
High Court of Kenya at Meru
H.C.C.A No. 127 of 2006
Jurisdiction invoked
First appellate jurisdiction over the High Court's decision under section 79B of the Civil Procedure Act

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, "Cornelius Michubu M\'Itabathi v Godfrey Bariu & 2 others [2013] KECA 323 (KLR)", Case Analysis (2013). Civil Appeal 196 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/323/eng@2013-05-16

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