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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 1 of 2006· [2015] KECA 694 (KLR)

Peter G.n. Ng’ang’a v Daniel Gichanga Kariuki (t/a Watts Enterprises (firm) & 24 others

Court of Appeal of Kenya
22 May 2015
2,744 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you cannot use a constitutional application to overturn another judge's ruling you already lost or abandoned on appeal.

What this practically means

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Executive summary

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The appellant, registered proprietor of suit property KAJIADO/OLOOLOITIKISHI/KITENGELA/2913, sued to challenge a charge in favour of National Bank of Kenya and sought injunctions to restrain its statutory power of sale. Ringera, J. refused an interim injunction on the eve of an auction, applying the equitable principles that delay defeats equity and equity will not aid the indolent. The appellant lodged an appeal, obtained an injunction pending appeal, but then voluntarily withdrew that appeal. He returned to the High Court with a constitutional application under section 84 of the former Constitution alleging that Ringera, J.'s refusal violated his rights to protection of the law, a fair hearing and non-discrimination, and relying on the dismissal of the bank's suit against Olympic Fruit Processors for want of prosecution. Ochieng', J. dismissed the application, holding that the dismissal of the bank's suit did not extinguish liability or the power of sale, that no constitutional issue was raised, and that the High Court could not sit on appeal over a coordinate judge's decision. The Court of Appeal unanimously dismissed the appeal. It reaffirmed the Anarita Karimi Njeru standard, as restated in Mumo Matemo, that constitutional violations must be pleaded with reasonable precision. Applying its own decision in Peter Ng'ang'a Muiruri v Credit Bank, the court held that a constitutional application cannot be used as a back door to review the merits of a ruling by a judge of coordinate jurisdiction, such an exercise being a usurpation of power and productive of endless litigation. A party who withdraws an appeal cannot revive the challenge in another forum. Costs were awarded against the appellant.

Key legal issues

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01

Precision in pleading constitutional violations

Holding

Constitutional allegations must be pleaded with reasonable precision, identifying the provision infringed and the manner of infringement.

Reasoning

The court endorsed the Anarita Karimi Njeru standard, as restated in Mumo Matemo, holding that precision in pleadings defines issues for adjudication but is not exactitude. The appellant's motion before Ochieng', J. was premised on broad grounds that the decision of Ringera, J. condemned him unheard, without precise identification of a constitutional contravention.

p. 4
02

Jurisdiction to review a coordinate court's decision via constitutional reference

Holding

A High Court judge cannot entertain a constitutional application that seeks review of the merits of another judge's ruling; the section 84 jurisdiction, if it lies, extends only to procedural impropriety in obtaining the ruling.

Reasoning

Following Peter Ng'ang'a Muiruri v Credit Bank, the court held that allowing a party defeated by a ruling to re-litigate it as a constitutional reference would create an absurd loop of appeals and reviews with no end to litigation. Ochieng', J. correctly declined jurisdiction and the decision below was affirmed.

p. 3
03

Consequences of withdrawal of a pending appeal

Holding

A party who voluntarily withdraws an appeal challenging a ruling cannot thereafter pursue the same relief in a different forum; blame for the collapse of the challenge rests on the appellant.

Reasoning

The appellant had been given an injunction pending appeal by this Court, but withdrew Civil Appeal No. 55 of 2003, claiming a defective notice of appeal. Having reached a dead end by his own election, he resorted to a constitutional challenge as an unusual route, which the court held was a back door way of attacking the ruling in a wrong forum.

p. 4

Legal principles established

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  • Allegations of violation of fundamental rights must be pleaded with reasonable precision, with specificity as to the provisions violated and the manner of violation.
  • A judge of the High Court has no jurisdiction, including under a constitutional application purporting to invoke section 84 of the former Constitution, to review or sit on appeal over a decision of a judge of coordinate jurisdiction.
  • A party who withdraws an appeal challenging a ruling cannot resuscitate the same challenge in the High Court as a constitutional reference; that route is an abuse of process and a usurpation of power.

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
High Court of Kenya at Milimani
H.C.C.C No. 40 of 2003
Jurisdiction invoked
Appellate jurisdiction over a decision of the High Court rendered in a constitutional reference under section 84 of the former Constitution

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, "Peter G.n. Ng’ang’a v Daniel Gichanga Kariuki (t/a Watts Enterprises (firm) & 24 others", Case Analysis (2015). Civil Appeal No. 1 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/694/eng@2015-05-22

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