Thomas K. Sambu v Paul K. Chepkwony [2018] KECA 209 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that skipping a court hearing can permanently kill your case if you then pick the wrong legal remedy.
What this practically means
#Executive summary
#Key legal issues
#Whether a dismissal for non-attendance under Order 12 Rule 3(1) amounts to a final judgment capable of founding res judicata
Yes. The Court of Appeal agreed with the trial Judge's reliance on Salem Ahmed Hasson Zaidi v Faud Hussein Humeidan and held that the dismissal of Kericho HCCC No. 23 of 2009 for non-attendance amounted to a final judgment.
The court compared Order 12 Rule 3(1) of the CPR with Rule 178 of the old rules applied in the Salem case, found them couched in similar terms, and adopted the reasoning that a dismissal under such a rule must be deemed a decision on the merits with the effect of a dismissal upon evidence. It therefore followed that the dismissal order operated as a final judgment.
The meaning of the word 'may' in Order 12 Rule 6(1) & (2) CPR and the sequencing of remedies
The word 'may' applies only where filing a fresh suit is taken as the first option; a party who first elects review under Order 12 Rule 7 and loses cannot later resort to Order 12 Rule 6 to file a fresh suit.
The court construed Order 12 Rule 6(1) and 6(2) together with Order 12 Rule 7 and found that the appellant had two initial options - file a fresh suit or seek review. Having unsuccessfully pursued review and abandoned the appeal against the review ruling, he had exhausted the review route and could not use Rule 6 as a fallback.
Whether Article 159(2)(d) of the Constitution overrides the procedural bar
No. Article 159(2)(d) is not a panacea for all procedural deficiencies and could not cure the appellant's failure to follow the correct procedure.
The court relied on Jaldesa Tuke Dabelo, Raila Odinga, Lemanken Arata and Patricia Cherotich Sawe to crystallise the parameters: where a clear procedure for redress is prescribed, it should be strictly followed, and Article 159(2)(d) cannot remedy every procedural shortfall.
Whether the appellant's right to a fair hearing under Article 50 was infringed
No. The appellant participated fully at every stage of the proceedings and lost because of his failure to follow the correct procedure, which does not amount to denial of a fair hearing.
The court examined the record and found the appellant participated at every stage. His loss stemmed from his election of the wrong remedy after losing the review application, not from any procedural unfairness, so there was no breach of Article 50.
Legal principles established
#- An order of dismissal for non-attendance under Order 12 Rule 3(1) of the Civil Procedure Rules is in the nature of a final judgment.
- The right to file a fresh suit under Order 12 Rule 6(1) & (2) is available only as a first option; it may not be used as a fallback after a party has unsuccessfully pursued review and setting aside under Order 12 Rule 7.
- Article 159(2)(d) of the Constitution cannot cure a litigant's failure to follow the correct statutory procedure for redress of a grievance.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Kericho
- Kericho E.L.C. Case No. 54 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, 2010, Article 164; Civil Procedure Act and Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas K. Sambu v Paul K. Chepkwony [2018] KECA 209 (KLR)", Case Analysis (2018). Civil Appeal No. 234 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/209/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.