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Court of AppealOtherCivil Appeal No. 231 of 2010· [2016] KECA 382 (KLR)

City Council of Nairobi v Woolwich Investments Limited [2016] KECA 382 (KLR)

Court of Appeal of Kenya
22 July 2016
EGE. M. GithinjiMartha Karambu KoomeM. K. KoomePhilomena Mbete MwiluP. M. Mwilu
731 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out its own ex parte judgment because a hearing notice went to the wrong law firm, ordering the appeal be heard afresh.

What this practically means

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Executive summary

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This is an interlocutory appeal by the City Council of Nairobi against a High Court ruling of Mbogholi Msagha, J dated 18th February 2010, which had allowed Woolwich Investments Limited's application for an interlocutory injunction restraining the Council from selling the respondent's property LR No. 330/357 on Gitanga Road, Nairobi, to recover demanded rates pending the hearing of a suit challenging the rates demand under the Rating Act. At the hearing of the appeal the respondent's advocates did not appear and the appeal proceeded ex parte, with judgment reserved. In preparing its judgment, the court discovered that the hearing notice had been served on the firm of 'Mutuli & Associates Advocates', whereas the firm on record for the respondent was 'Mutuli & Apopo Advocates', and no notice of change of advocates had been filed under Rule 23(1) of the Court of Appeal Rules. The court held that serving the hearing notice on the wrong firm denied the respondent a cardinal right to be heard, and that a judgment delivered in breach of the right to fair hearing enshrined in Article 50(1) of the Constitution would be invalid. Exercising its inherent jurisdiction under Rule 1(2), the court directed that the appeal be re-heard inter partes upon service of the hearing notice on the advocates on record, or, if that firm no longer exists, on the respondent in any prescribed manner of service. The court regretted the delay, attributable to members of the bench taking official leave at different times. The merits of the injunction appeal were left undetermined.

Key legal issues

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01

Validity of an ex parte appellate judgment where the hearing notice was served on the wrong firm of advocates

Holding

The ex parte judgment was invalid because service on a firm not on record denied the respondent its right to a fair hearing guaranteed by Article 50(1) of the Constitution

Reasoning

The firm on record in the High Court was Mutuli & Apopo Advocates; no notice of change of advocates had been filed under Rule 23(1). Service of the hearing notice on Mutuli & Associates Advocates was therefore improper. Since the respondent was thereby deprived of the opportunity to be heard on the appeal, the resulting judgment offended Article 50(1) and could not stand, necessitating a re-hearing.

p. 2
02

Proper address for service of a notice of appeal

Holding

Under Rule 77(2), service of a notice of appeal on the address given in the superior court, even that of an advocate not retained for the appeal, is proper

Reasoning

The court found that it was proper to serve the notice of appeal and a hearing notice on Mutuli & Apopo Advocates, the firm on record. The defect lay solely in serving the hearing notice on a different firm that had never come on record. Rule 77(2) validates service at an address given for service in the superior court even where it belongs to an advocate not retained for the appeal.

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03

Exercise of the court's inherent jurisdiction to remedy a breach of fair hearing

Holding

The court invoked its inherent jurisdiction under Rule 1(2) to direct a re-hearing of the appeal inter partes

Reasoning

Having found the ex parte judgment invalid for want of fair hearing, the court did not determine the merits of the injunction appeal. Instead, exercising inherent power under Rule 1(2) of the Court of Appeal Rules, it directed a fresh inter partes hearing upon proper service, with a fallback for service on the respondent directly if the firm no longer exists.

p. 2

Legal principles established

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  • A judgment delivered in breach of a party's right to a fair hearing under Article 50(1) of the Constitution is invalid
  • Where a party gave an address for service in the superior court and has not given any other address, a notice of appeal may be served at that address even if it is that of an advocate not retained for the appeal, under Rule 77(2)
  • Service of a hearing notice on a firm of advocates that is not on record for a party, and which has not filed a notice of change of advocates, is improper service

Court orders

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  1. 1.The appeal be re-heard inter partes upon service of hearing notice on the firm of advocates on record for the respondent
  2. 2.In the event that the firm of advocates no longer exists, the hearing notice should be served on the respondent in any of the prescribed manners of service

Authorities

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Legislation

  • Rating Actnull
  • Constitution of Kenya, 2010Article 50(1)
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 23(1)
  • Court of Appeal RulesRule 75(3)
  • Court of Appeal RulesRule 77(2)
  • Court of Appeal RulesRule 79(1)(a)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 462 of 2009
Jurisdiction invoked
Inherent jurisdiction under Rule 1(2) of the Court of Appeal Rules

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, "City Council of Nairobi v Woolwich Investments Limited [2016] KECA 382 (KLR)", Case Analysis (2016). Civil Appeal No. 231 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/382/eng@2016-07-22

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