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Court of AppealAllowedCivil Appeal No. 11 of 2005· [2017] KECA 582 (KLR)

Kezia Wambui Mwaura & another v Clement J. M. Kariuki & 4 others [2017] KECA 582 (KLR)

Court of Appeal
7 April 2017
AVAlnashir VisramGKG. B. M. KariukiJMJ. Mohammed
3,579 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 a judge cannot hear or dismiss a lawsuit on a date it was not scheduled for hearing.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi against the summary dismissal, by Ransley J on 15th October 2004, of the appellants' suit (HCCC No. 290 of 1994) seeking recovery of land known as Dagoretti/Thogoto/T.32 from the respondents. The dispute concerned a 0.24-acre parcel transferred to the 5th respondent church by the 2nd respondent, who allegedly obtained title irregularly after the appellants had been declared entitled to the property in earlier litigation. The appeal was lodged in January 2005; both original appellants died during its pendency and the appeal was revived on 4th March 2016 following substitution of Grace Wanjiku Karanja under rule 99(3) of the Court of Appeal Rules. The Court of Appeal framed five issues, centring on whether the suit was set down for hearing on 15th October 2004, whether the judge could hear and dismiss it on that date, and whether the appellants' right to a fair hearing was violated. The court found that only the contempt application was listed on 15th October 2004; the hearing of the suit had collapsed on 15th September 2004. The trial judge erred in ordering the suit to continue, in refusing without reasons to disqualify himself, in failing to determine the appellant's adjournment request, and in summarily dismissing a suit not before him for hearing. This violated the appellants' right to a fair hearing, now entrenched in Article 50 of the Constitution. The appeal was allowed, the dismissal orders set aside, the suit restored for hearing de novo before another judge, with costs of the High Court and the appeal awarded to the appellant against the 1st, 2nd and 5th respondents.

Key legal issues

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01

Whether a suit can be heard and dismissed on a date on which it was not set down for hearing

Holding

No. The suit was not fixed for hearing on 15th October 2004; only the contempt application was. Hearing and dismissing the suit on that date was a misdirection.

Reasoning

The hearing of the suit on 15th September 2004 had collapsed; what was before Ransley J on 15th October 2004 was the contempt application. Order 12 of the Civil Procedure Rules requires the suit to be fixed for hearing and hearing notices served before dismissal for non-appearance. The judge could not impose a hearing on an unwilling party without consent, and his purported dismissal was without jurisdiction.

p. 4
02

Whether the appellant's right to a fair hearing was violated

Holding

Yes. Hearing and summarily dismissing a suit not scheduled for hearing, without determining the adjournment request, violated the right to fair hearing.

Reasoning

The appellant's statement that she did not wish to proceed was in effect an adjournment request which the judge declined to consider or determine on its merits. He also refused to disqualify himself without giving reasons. The trial judge's improper exercise of discretion denied the appellant the right to be heard, contrary to Article 50 of the Constitution and common law fair-hearing rights.

p. 6
03

Whether the judge's discretion to dismiss the suit was properly exercised

Holding

No. Dismissal of a suit requires that it be set down for hearing and the absent party served; the judge had no discretionary power to dismiss a suit not before him.

Reasoning

Order 17 rule 1 and Order 12 of the Civil Procedure Rules govern dismissal for non-appearance and require that the suit be set down and the party served. Rules of procedure are handmaidens of justice, and the court must as far as possible hear disputes on their merits. Dismissal without hearing evidence, on a day the suit was not listed, was an error of law occasioning grave injustice.

p. 5

Legal principles established

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  • A trial court may not hear and determine a suit on a date on which it was not set down for hearing, absent the consent of all parties.
  • A matter not fixed for hearing can neither be heard without consent of all parties nor be dismissed; there is no discretionary power to dismiss a suit not before the court for hearing.
  • Where a matter is fixed for mention, a judge is not entitled unilaterally to determine substantive issues unless both parties consent and are given an opportunity to make submissions.

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the High Court dated 15th October 2004 dismissing the suit and on costs set aside
  3. 3.Suit restored and to be heard de novo before another judge
  4. 4.Costs in the High Court and in the appeal awarded to the appellant, to be borne by the 1st, 2nd and 5th respondents

Authorities

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Legislation

  • Civil Procedure ActCap 21 Laws of Kenya; section 3A
  • Civil Procedure RulesOrder 17 rules 1(1), 1(3) and 3
  • Civil Procedure RulesOrder 12
  • Civil Procedure RulesOrder 17 rule 4
  • Constitution of Kenya, 2010Article 50(1)
  • Court of Appeal Rulesrule 99(3)

Cases cited (8)

  • Jefferson Ltd vs Bhatcha
    (1979) 2 All ER 1108
  • Cooper & Another vs Williams & Another
    (1963) 2 All ER 282
  • Iron & Steelwares Ltd v. C W Martyr Co.
    [1956] 23 EACA 175
  • Wanjiku v. Esso Kenya Ltd
    [1995-1988] 1 EA 332
  • Trust Bank Ltd v. Amalo Company Limited
    [C.A. No. 215 of 2000]
  • Essanji and Another v. Solanki
    [1968] EA at page 224
  • Dr. Samson Auma v. Jared Shikuku & Another
    [Civil Appeal No. 191 of 2002]
  • Keziah Wambui Mwaura v. Mbatia Waiganjo and Clement John Mwaura Kariuki
    High Court Civil Appeal No. 81 of 1991
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 290 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules; appeal lodged 24th January 2005 and revived under rule 99(3) 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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Later judgments citing this (1)

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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, "Kezia Wambui Mwaura & another v Clement J. M. Kariuki & 4 others [2017] KECA 582 (KLR)", Case Analysis (2017). Civil Appeal No. 11 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/582/eng@2017-04-07

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