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Court of AppealAllowedNairobi High Court Suit No. 297 of 2004 (appeal against striking out)· [2016] KECA 372 (KLR)

Ngugi v Attorney General (Civil Appeal 297 of 2004) [2016] KECA 372 (KLR)

Court of Appeal of Kenya
15 July 2016
PWP. N. WakiGKG. B. M. KariukiWilliam OukoW. Ouko
2,328 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that suing the government with less than 30 days' notice doesn't kill your case—your suit survives.

What this practically means

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Executive summary

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The appellant sued the Attorney General for damages for malicious prosecution/arrest, alleging he was arrested without reasonable and probable cause and charged with several Penal Code offences, with the prosecution later abandoned for insufficiency of evidence. The High Court (Ang'awa J) struck out the suit as incompetent on a preliminary objection, holding that his notice under section 13A of the Government Proceedings Act gave only 5 days rather than the required 30 days before filing suit. The Court of Appeal allowed the appeal. The central issue was whether the 'shall' in section 13A is mandatory or directory. The Court held that the word is directory because it confers neither a right nor a power to sue; the right to sue the State rests in common law, subject only to the Limitation of Actions Act. The purpose of the notice is simply to give the Attorney General time to take instructions, and nowhere does the Act render a suit with imperfect notice incompetent. The Court noted substantial compliance with section 13A, invoked Article 159(2)(d) of the 2010 Constitution on procedural technicalities, and regarded the High Court decision in Kenya Bus Service Ltd v Minister for Transport (2012) on the constitutionality of section 13A as persuasive and entitled to respect. The appeal was allowed, the striking-out set aside, and the suit restored for hearing on merit, with each party bearing its own costs.

Key legal issues

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01

Whether 'shall' in section 13A of the Government Proceedings Act is mandatory or directory

Holding

The word 'shall' in section 13A is directory because it confers neither a right nor a power to sue; the claimant's right to sue the State is founded in common law subject only to limitation periods.

Reasoning

The court applied canon of construction: 'shall' connotes mandatoriness only where it confers a power and a duty to act. Section 13A merely prohibits filing before notice expiry; it does not confer the right to sue, which rests in common law and is governed by the Limitation of Actions Act. Read as a whole, the Government Proceedings Act nowhere manifests an intention to deprive a litigant of a cause of action for partial non-compliance, and the mischief of the section was simply to ensure the Attorney General has notice.

p. 4
02

Whether a suit filed before expiry of the full 30-day notice is incompetent

Holding

No. Substantial compliance with section 13A suffices; a suit filed without full compliance is not incompetent and cannot rightly be struck out.

Reasoning

The purpose of the notice is to inform the Attorney General of the claim and allow the relevant department to take instructions. The Act nowhere expressly or by implication renders a suit with imperfect notice incompetent. Where the appellant gave notice (albeit only days before filing) and filed suit within the limitation period, striking out the suit for want of the full 30 days was erroneous, all the more so under Article 159(2)(d) of the 2010 Constitution requiring justice without undue regard to procedural technicalities.

p. 4

Legal principles established

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  • Section 13A of the Government Proceedings Act is directory, not mandatory; a suit filed without full compliance with the 30-day notice requirement is not incompetent and cannot be struck out on that ground alone.
  • Procedural rules and directory provisions, even where their peremptoriness is clear, cannot vitiate a cause of action and the right to sue.
  • The word 'shall' in a statute does not import mandatoriness where it confers neither a power nor a duty to act; such a provision is directory.

Court orders

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  1. 1.Appeal allowed
  2. 2.The learned Judge's decision striking out the suit set aside
  3. 3.Suit No. 3874 of 1994 in the High Court to be heard and determined on merit in the normal way pursuant to the Civil Procedure Act and the Civil Procedure Rules
  4. 4.Each party to bear its own costs in the High Court and in this appeal

Authorities

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Legislation

  • Government Proceedings ActSection 13A
  • Penal CodeSection 296(2)
  • Penal CodeSection 306(c)
  • Penal CodeSection 279(g)
  • Penal CodeSection 124(a)
  • Limitation of Actions ActGeneral
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActGeneral
  • Civil Procedure RulesGeneral

Cases cited (1)

  • Kenya Bus Service Ltd & Another v. Minister For Transport & 2 Others
    [2012] eKLR
On appeal from
High Court of Kenya
Nairobi High Court Suit No. 297 of 2004
Jurisdiction invoked
First appeal to the Court of Appeal against a decision of the High Court (statutory appellate jurisdiction; no specific constitutional article stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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

Cite this brief

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Cite this brief

Caselaw, "Ngugi v Attorney General (Civil Appeal 297 of 2004) [2016] KECA 372 (KLR)", Case Analysis (2016). Nairobi High Court Suit No. 297 of 2004 (appeal against striking out). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/372/eng@2016-07-15

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