Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 258 of 2008· [2014] KECA 335 (KLR)

Ruth Nyambura Chuchu & 2 Others v Stephen Gathoga Chuchu Alias Stephen Mungai Githu [2014] KECA 335 (KLR)

Court of Appeal of Kenya
10 October 2014
SKS Gatembu KairuKMK. M'inotiJMJ. Mohammed
3,222 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled judges can only decide issues actually argued before them, setting aside a High Court order for DNA testing.

What this practically means

#

Executive summary

#
This appeal by the three widows and joint administrators of the estate of Solomon Chuchu Wataku challenged a ruling of the High Court (Gacheche, J.) ordering DNA sampling from five sons of the deceased to determine the respondent's paternity. The respondent had filed a summons for revocation or annulment of the grant issued to the appellants, alleging he was a concealed son and heir of the deceased. Separately, he filed an application for DNA testing which was never given a hearing date. When the revocation summons was heard on 10th March 2008, the judge ruled on 8th April 2008 that paternity could not be conclusively determined on affidavit evidence and ordered DNA testing, directing the appellants to nominate five sons of the deceased to provide samples. The Court of Appeal identified three issues: whether the judge made orders not sought, based her decision on unargued issues, and made orders against non-parties. The court held, applying Gandy v Caspair, Bhari v Khan and Odd Jobs v Mubia, that the DNA issue was pending in a separate application and was not raised or left to the judge within the revocation summons; the judge therefore erred in determining it. It further held that the right to be heard is real, not assumed, and that the proposed donors, being non-parties and facing a personal and invasive procedure, had to be given a genuine opportunity to be heard. Finally, the order was too uncertain to be enforceable since the five 'nominated' sons were not parties and could not be compelled. The court found it unnecessary to address other issues raised, allowed the appeal, set aside the High Court ruling of 8th April 2008, and awarded costs of both the appeal and the application below to the appellants.

Key legal issues

#
01

Whether a court may make orders on issues not before it

Holding

The learned judge erred in ordering DNA testing when the application raising that issue was pending and not before her; parties must not raise issues other than those submitted for determination, subject to the exception of unpleaded issues left to the court.

Reasoning

It was common ground that the hearing of 10th March 2008 concerned the summons for revocation or annulment of grant, not the DNA application of 7th March 2008. Counsel for the respondent conceded the DNA application had no hearing date. None of the parties addressed DNA issues such as desirability of testing, willingness of donors, or the exhumation alternative. The order therefore determined issues in an application that was not before the judge without the parties being heard on them.

p. 4
02

Right to be heard of persons against whom orders are made

Holding

The persons from whom DNA samples were to be taken were not parties and were not heard; as beneficiaries they could not be assumed to have had an opportunity to be heard, given the personal and invasive nature of DNA sampling.

Reasoning

The order targeted 'five named sons of the deceased' though no names were given in the ruling, and the persons specified in the respondent's application included a daughter and two brothers. The court held that the right to be heard is real, not assumed, and that given the intimate nature of the procedure, unless persons voluntarily agreed, they must be afforded a real opportunity to be heard before an order is made against them.

p. 5
03

Uncertainty and enforceability of orders

Holding

The order leaving nomination of five sons to the applicants was too uncertain to be enforceable, since the nominated sons were not parties and could not be compelled if unwilling.

Reasoning

The deceased had ten sons but the order did not specify which five would provide samples, instead leaving nomination to the applicants. The court applied the principle that courts should avoid making vain or ineffectual orders that cannot be enforced or can only be enforced with undue supervision, as stated in Makokha v Sagini in the context of injunctions, and held the principle valid in this appeal.

p. 6

Legal principles established

#
  • A court may not determine issues that were not before it and were not addressed by the parties; relief must be founded on the pleadings, save where an unpleaded issue is expressly left to the court for decision.
  • Before an order is made against a party, that party must be afforded a real opportunity to be heard; the right to be heard cannot be assumed merely because the person is a beneficiary of an estate.
  • A court should not make orders that are uncertain or incapable of enforcement.

Court orders

#
  1. 1.Appeal allowed
  2. 2.Judgment (ruling and order) of the High Court dated 8th April 2008 set aside
  3. 3.Costs of the appeal and of the application before the High Court awarded to the appellants

Authorities

#

Legislation

  • Civil Procedure Actsections 22 and 23
  • Probate & Administration RulesRule 63
  • Probate and Administration RulesRule 73
  • Penal Codesection 122A(2)
  • Court of Appeal RulesRule 100

Cases cited (11)

  • Galaxy Paints Co Ltd v Falcon Guards Ltd
    CA No. 219 of 1998
  • Ole Nganai v Arap Bor
    CA No 33 of 1981
  • Mary Wamboi v Kiarie Chege
    HC Misc App No 105 of 2004 (Kakamega)
  • In the Matter of the Estate of George Musau Matheka
    HCCC No 470 of 1990
  • Gandy v Caspair
    (1956) 23 EACA 139
  • Bhari v Khan
    (1965) EA 94
  • Odd Jobs v Mubia
    (1970) EA 476
  • Mutiso v Mutiso
    (1984) KLR 536
  • Matiba v Attorney General
    (1995-1998) 1 EA 192
  • Eric V.J. Makokha & 4 Others v Lawrence Sagini & 2 Others
    CA No. NAI 20 of 1994
  • Hitenkumar Amritlal v City Council of Nairobi
    CA No 47 of 1981
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1379 of 2006
Jurisdiction invoked
Appeal from the ruling and order of the High Court under the Court of Appeal Rules; the judgment does not cite a specific appellate jurisdiction provision.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (6)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Ruth Nyambura Chuchu & 2 Others v Stephen Gathoga Chuchu Alias Stephen Mungai Githu [2014] KECA 335 (KLR)", Case Analysis (2014). Civil Appeal No. 258 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/335/eng@2014-10-10

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