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Court of AppealDismissedCivil Appeal No. 62 of 2016· [2017] KECA 578 (KLR)

Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others [2017] KECA 578 (KLR)

Court of Appeal of Kenya
10 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,759 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 ruled that minor procedural mistakes in court documents don't sink a case unless they cause real prejudice.

What this practically means

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Executive summary

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This interlocutory appeal arose from an advocate-client fees dispute that generated protracted satellite litigation. The appellant advocate applied before Chitembwe, J. to strike out the respondents' suit on the grounds that the amended plaint did not comply with Order 8 Rule 7 of the Civil Procedure Rules and that the suit was wrongly filed at Malindi rather than Nairobi. The High Court dismissed the application, finding the amendments discernible and the objections mere technicalities. The appellant appealed; the respondents cross-applied under rule 84 to strike out the appeal for alleged service failures, late filing and the absence of a certified copy of the ruling. The Court of Appeal dismissed the striking-out application, holding that service and filing were timeous and that rule 87(1) requires certification of the decree or order, not the ruling. On the merits, the Court declined to entertain the res judicata and abuse of process argument raised for the first time on appeal, holding that courts rule on issues raised by the parties. On the amendment objection, it held that 'shall' does not automatically import mandatoriness; the decisive questions are whether the amendments were discernible and whether prejudice was caused, and technical lapses should not lead to striking out pleadings under Article 159 and the overriding objective. On venue, the Court affirmed that section 15 of the Civil Procedure Act applies only to subordinate courts; the High Court is one court sitting at different stations and the place of filing does not affect its jurisdiction or render a suit a nullity. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether non-compliance with Order 8 Rule 7 amendment formalities renders a plaint incurably defective

Holding

No. The formalities (endorsement with dates, red ink) are technical; where the amendments are discernible and no prejudice is caused, the plaint stands. 'Shall' does not automatically import mandatoriness.

Reasoning

The Court held that the decisive question is whether parties and the court could tell what alterations were introduced, and what prejudice the lapses occasioned. Since the learned judge found the amendments clear and legible and the date of the allowing order was undisputed, the lapses were technical and curable under Article 159(d) and the overriding objective.

p. 5
02

Whether the High Court could entertain a suit filed at Malindi where the appellant resides in Nairobi, under section 15 of the Civil Procedure Act

Holding

Section 15 applies only to subordinate courts; the High Court's jurisdiction is national, original and unlimited, and its station is a matter of administrative convenience only.

Reasoning

Relying on Riddesbarger v. Robson (1958) and Francis Ndichu Gathogo, the Court reiterated that the High Court's national, original and unlimited constitutional jurisdiction cannot be limited by section 15. Filing requirements at particular stations serve convenience and cost reduction, and filing at any station does not render a suit a nullity.

p. 5
03

Whether the Court could determine the res judicata/abuse of process objection raised for the first time on appeal

Holding

No. The issue was neither pleaded nor argued before the High Court, and the responsibility of a court is to rule on the issues on record, not to introduce extraneous matters.

Reasoning

The application before the High Court was based only on the venue of filing and the manner of amendment. The appellant's own written submissions confined the issues to section 15 and Order 8. Since the parties neither raised nor left res judicata to the judge, the Court could not entertain it on appeal, citing Kenya Ports Authority v. Kuston and Odd Jobs v. Mubea on the limited exception for unpleaded issues left to the court.

p. 4
04

Whether the appeal was competent against the respondents' application to strike it out

Holding

Yes. The notice of appeal, request for proceedings and record of appeal were all filed within the prescribed periods under rules 75, 82 and 84, and rule 87(1) requires certification of the decree or order, not the ruling.

Reasoning

The notice of appeal was lodged within 14 days, the letter bespeaking proceedings within 30 days, service was effected and uncontroverted, and the 60-day period ran from collection of proceedings on 20th June 2016, with the appeal filed on 11th August 2016. A certified copy of the order, not the ruling, is what rule 87(1) requires, and one was on record.

p. 3

Legal principles established

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  • The use of the word 'shall' in procedural rules does not by itself make the provision mandatory; whether a requirement is mandatory depends on context and prejudice
  • Procedural lapses that do not occasion irremediable prejudice should not result in striking out pleadings; courts should sustain pleadings on technicalities under Article 159 and the overriding objective
  • Section 15 of the Civil Procedure Act on the place of filing suits applies only to subordinate courts and does not limit the High Court, which is one court sitting at different stations
  • A court will not determine or base its decision on unpleaded issues that the parties neither raised nor left to the court to decide
  • Under rule 87(1) of the Court of Appeal Rules, what must be certified is the decree or order, not the judgment or ruling appealed from

Court orders

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  1. 1.The respondents' application to strike out the appeal dismissed with costs to the appellant
  2. 2.The appeal dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15(1)(b)
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 8 (including rule 7)
  • Civil Procedure RulesOrder 47 Rule 6
  • Civil Procedure Actsection 95
  • Civil Procedure Actsection 15
  • Civil Procedure Actsections 1A & 1B
  • Appellate Jurisdiction Actsections 3A & 3B
  • Advocates Actreferences on taxation (provision not specified)
  • Court of Appeal Rulesrules 75(2), 77(1), 82(1), 84, 87(1)
  • Constitution of Kenya, 2010Article 159 (including 159(d))
  • Civil Procedure Ordinancesection 15

Cases cited (15)

  • Choitram v. Nazari
    [1976-1985] EA 52
  • National Industrial Credit Bank Ltd v. Aquinas Francis Wasike & Another
    CA No. Nai. 238 of 2005
  • David Kinyanjui Njenga & 2 Others v. Maureen Waithera Mwenje & Another
    CA No. 104 of 2011
  • Odd Jobs v. Mubea
    [1970] 476
  • Baber Alibhai Mawji v. Sultan Hashim Lalji & Another
    CA No 296 of 2001
  • Kenya Ports Authority v. Kuston
    [2009] 2 EA 212
  • Nicholas Salat v. IEBC & 6 Others
    CA (Application) No 228 of 2013
  • E. Muriu Kamau & Another v. National Bank of Kenya Ltd.
    CA No. 258 of 2009 (UR180/2009)
  • Riddesbarger v. Robson
    [1958] EA 375
  • Francis Ndichu Gathogo v Evans Kitazi Ondansa & Another
    CA. No. 287 of 2002
  • Gitau John Kimemia v. Unilever Tea Company Ltd
    HCCC No. 63 of 2007
  • Jane Wambui Weru v. Overseas Private Inv. Corp & 3 Others
    HCCC No. 83 of 2012
  • Aly Jamal v. Erastus George Momanyi & 2 Others
    HCCC No. 34 of 2014
  • Gitiha v. Family Finance Building Society & Others
    [2013] 1 EA 75
  • Lamanken Aramat v. Harun Maitamei Lempaka
    SC Petition No 5 of 2014
On appeal from
High Court of Kenya at Malindi
HCCA No. 17 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Appellate Jurisdiction Act over an appeal from the High Court (interlocutory appeal from a ruling of the High Court); sections 3A & B of the Appellate Jurisdiction Act invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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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, "Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others [2017] KECA 578 (KLR)", Case Analysis (2017). Civil Appeal No. 62 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/578/eng@2017-03-10

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