Daniel Maingi Muchiri v Jubilee Insurance Co. Ltd [2017] KECA 91 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed judges can extend interim orders and fix hearings on mention dates, dismissing a human-rights challenge against procedural orders.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court (Onyancha, J) had jurisdiction to extend the ex parte stay orders issued on 6th June 2014 by the order of 18th June 2014
- 2.Whether a judge may properly fix a matter for inter partes hearing and extend interim orders on a mention date rather than deliver a considered ruling
- 3.Whether the constitutional/human-rights grounds raised against the orders of 18th June 2014 had merit
Key legal issues
#Whether the High Court had jurisdiction and discretionary power to extend the ex parte stay orders on 18th June 2014
The court had both the jurisdiction and the discretionary power; its inherent power, preserved and augmented by sections 1A, 1B and 3 of the Civil Procedure Act and sections 3, 3A and 3B of the Appellate Jurisdiction Act, allows orders necessary for the ends of justice.
The court held that inherent jurisdiction does not derive from legal provisions, which merely preserve it; sections 1A and 1B of the CPA and 3A and 3B of the AJA augment it. Relying on the Jacorossi Impresse Spa decision, it endorsed the view that courts may make orders necessary for the ends of justice because the law cannot anticipate all inconveniences. The Judge's extension of the stay and directions were therefore a proper exercise of discretion.
Whether the Judge was obliged to write a considered ruling when extending the orders on a mention date
No; a court has no jurisdiction to hear submissions and issue a reasoned ruling on a mention date, and it was proper to fix the matter for inter partes hearing instead.
Adopting the reasoning in Republic vs. Anti-Counterfeit Agency Ex-Parte Surgippharm Limited, which distilled Court of Appeal authority including Central Bank of Kenya vs. Uhuru Highway Development Ltd, the court held that matters fixed for mention cannot be heard or substantively determined without the parties' consent. Fixing the application for hearing inter partes on 23rd June 2014 was a just order giving parties the opportunity to agitate their cases.
Whether the constitutional and human-rights complaints against the impugned orders had merit
The constitutional issues were rejected, the court applying its findings in CA 138/2015 and 136/2015.
The court noted it had already dealt with the constitutional issues in two companion appeals and simply applied those findings. It also deprecated counsel's assertion that rules of procedure are subservient to the Constitution and that he could vindicate human rights without following any rules, terming such a stance a recipe for disorder and uncertainty in law and procedure.
Legal principles established
#- The inherent jurisdiction of courts is not created by statute; statutory provisions merely preserve and augment it, empowering courts to make orders necessary for the ends of justice.
- A court hearing a mention has no jurisdiction to hear submissions and issue a reasoned ruling on that date; substantive matters may not be determined on a mention date unless the parties consent.
Court orders
#- 1.The appeal be and is hereby dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.A. No. 195 of 2014
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (first appellate-tier appeal against interlocutory orders of the High Court)
Relief refused
#Discharge and setting aside of the orders issued on 18th June 2014
The complaints arose from a misreading of the record; the Judge had jurisdiction and discretion to make the impugned orders on a mention date
Striking out of the respondent's memorandum of appeal
Not granted; the appeal was dismissed in its entirety with costs
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We say in those circumstances that the court had the jurisdiction and the discretionary power to make the impugned orders.
The inherent jurisdiction of courts is not created by legal provisions. Such provisions as sections 3 of the Civil Procedure Act (CPA) and 3 (1) of the Appellate Jurisdiction Act, (AJA) and the relevant rules thereunder, merely preserve the inherent power.
the orders were properly made since the court had no jurisdiction to hear submissions and issue a reasoned ruling on a 'mention' date, which is a cardinal rule of practice.
We accordingly order that the appeal be and is hereby dismissed with costs.
Issues in the judgment
#The judgment records that the unsolicited statement from the bar was made by 'learned counsel for the appellant, Mr. P. Ngoge', but elsewhere the record shows Mr. Ngoge appearing 'for Respondent' before the High Court and Mr. Luseno for the appellant, creating an internal inconsistency as to which party Mr. Ngoge represented.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Maingi Muchiri v Jubilee Insurance Co. Ltd [2017] KECA 91 (KLR)", Case Analysis (2017). Civil Appeal No. 175 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/91/eng@2017-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.