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Court of AppealAllowedCivil Appeal No. 36 of 2012· [2015] KECA 148 (KLR)

Joseph Ndirangu Waweru t/a Mooreland Mercantile Co. & another v City Council of Nairobi [2015] KECA 148 (KLR)

Court of Appeal
11 December 2015
WKW. KaranjaHOH. M. OkwenguGKG. B. M. Kariuki
2,152 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that one High Court judge cannot undo another judge's final judgment, restoring the Ksh. 55 million judgment against the City Council of Nairobi.

What this practically means

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Executive summary

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The appellants sued the City Council of Nairobi in 1993 for general and special damages. After the Council failed to comply with an order to furnish particulars, Mbogholi, J struck out the defence on 18th March 1997 and entered judgment for the appellants as prayed in the plaint. A preliminary decree drawn in 2005 quantified the special damages with interest, and the Council paid Ksh. 55,000,000 in satisfaction. Formal proof of general damages proceeded before Mugo, J, who in a judgment dated 29th January 2007 held that the execution and payment were premature and illegal, invoked the court's inherent jurisdiction under Section 3A of the Civil Procedure Act, dismissed the appellants' suit, set aside the 1997 judgment and preliminary decree, and ordered a refund of the Ksh. 55 million. The Court of Appeal allowed the appeal. Holding that a Judge of the High Court has no jurisdiction to set aside or re-hear the judgment of a fellow Judge of concurrent jurisdiction, and that the respondent's remedy lay in an appeal, the Court followed its decision in Stephen Mwaura Njuguna and distinguished Highway Furniture Mart, where the Judge had only corrected a decree that did not conform with the judgment. The Court further held that formal proof was confined to general damages, the liquidated special damages claim having been disposed of at the preliminary stage. The judgment of Mugo, J was set aside in its entirety, the appellants were granted liberty to pursue their general damages claim at formal proof before another Judge, and costs of the appeal and the High Court were awarded to the appellants.

Key legal issues

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01

Whether a Judge of concurrent jurisdiction can set aside the judgment of another Judge

Holding

A Judge has no jurisdiction whatsoever to set aside a proper, regular judgment rendered by a court of competent jurisdiction by a fellow Judge of concurrent jurisdiction; the remedy is appeal

Reasoning

The Court distinguished Highway Furniture Mart, where the Judge corrected a decree that failed to accord with the judgment, leaving the judgment intact. Here the judgment of Mbogholi, J was unchallenged, the decree was compliant and had been satisfied, and the respondent had not appealed. Setting aside the judgment and decree therefore exceeded the Judge's jurisdiction.

p. 4
02

Whether the formal proof proceedings extended to the whole claim including special damages

Holding

Formal proof was strictly confined to the claim for general damages; the special damages claim, being liquidated, had already been disposed of at the preliminary decree stage

Reasoning

The Court held that the claim for special damages was liquidated and had been disposed of at the preliminary stage, so the Judge erred in assuming jurisdiction to revisit it or the preliminary decree at formal proof, which was for proving general damages only.

p. 5
03

Whether the High Court's inherent jurisdiction under Section 3A of the Civil Procedure Act authorised setting aside an executed judgment and ordering a refund

Holding

Inherent jurisdiction could not be invoked to set aside an unchallenged, regular judgment and a compliant, satisfied decree, nor to order a refund suo motu where the respondent had made no complaint

Reasoning

The Court found the Highway Furniture Mart line of authority inapplicable because there the decree was a nullity not conforming to the judgment. Here the judgment was proper and the decree compliant and satisfied, with no complaint or appeal by the respondent, so the inherent power under Section 3A gave the Judge no authority to disturb them or order a refund.

p. 3

Legal principles established

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  • A Judge of the High Court has no jurisdiction to re-hear, set aside or interfere with a judgment of a fellow Judge of concurrent jurisdiction; the only recourse of an aggrieved party is an appeal
  • A superior court's inherent jurisdiction to set aside a decree that is a nullity applies only where the decree does not conform with the judgment; where the decree conforms with an unchallenged, regular judgment, the court is functus officio
  • A liquidated claim for special damages disposed of at a preliminary stage is not subject to re-agitation or proof at formal proof, which is confined to unliquidated general damages

Court orders

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  1. 1.The judgment of Mugo, J dated 29th January 2007 is set aside in its entirety
  2. 2.The appellants are at liberty to pursue their claim on general damages by way of formal proof before any other Judge of the High Court, other than Mugo, J
  3. 3.Costs of the appeal and of the High Court are awarded to the appellants

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder VI Rule 3(6)
  • Civil Procedure RulesOrder XX Rule 6(1)

Cases cited (2)

  • Stephen Mwaura Njuguna vs Douglas Kamau Ngotho consolidated with Civil Appeal No. 247 of 2007
    Civil Appeal No. 90 of 2005
  • Highway Furniture Mart Ltd vs The Permanent Secretary Office of The President & Attorney General
    Civil Appeal No. 52 of 2005
On appeal from
High Court of Kenya at Nairobi
HCCC No. 1323 of 1993
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution and the Civil Procedure Act (the judgment does not state the specific provision); the appeal challenged the High Court's assumed inherent jurisdiction under Section 3A 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, "Joseph Ndirangu Waweru t/a Mooreland Mercantile Co. & another v City Council of Nairobi [2015] KECA 148 (KLR)", Case Analysis (2015). Civil Appeal No. 36 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/148/eng@2015-12-11

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