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Court of AppealDismissedCivil Appeal No. 6 of 2018· [2019] KECA 770 (KLR)

Phoenix of E.A. Assurance Company Limited v Simeon Muruchi Thiga t/a Newspaper Service [2019] KECA 770 (KLR)

Court of Appeal
10 May 2019
WKW. KaranjaSKS. Gatembu KairuFSF. Sichale
246 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 any case or appeal built on a suit filed in a court lacking jurisdiction is void from the start.

What this practically means

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Executive summary

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This short judgment of the Court of Appeal at Nairobi (Karanja, Gatembu Kairu and Sichale, JJ.A) dealt with an appeal by Phoenix of E.A. Assurance Company Limited against the judgment and decree of the High Court (Olga Sewe, J.) dated 2nd September 2016 in HCCC No. 248 of 1997. The Court noted that in a prior judgment in Civil Appeal No. 244 of 2010 it had already determined that High Court Civil Suit No. 248 of 1997 was a nullity ab initio, because the original suit, PMCC No. 918 of 1991, had been filed in a court without jurisdiction and was therefore null and void ab initio. Building on that determination, the Court held that the present appeal, which arose from the nullified suit, was itself a nullity and could not lie. Adopting the reasons given in its earlier judgment, a copy of which was on the record, the Court dismissed the appeal. On costs, the Court ordered that there be no order as to costs, having already awarded costs in Civil Appeal No. 244 of 2010. The judgment underscores the principle that proceedings founded on a void suit inherit that voidness: an appeal from a judgment in a nullified suit is itself a nullity. The decision is brief, adopts the reasoning of a companion appeal, and contains no separate opinions, dissents, or extended discussion of the underlying merits.

Key legal issues

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01

Whether an appeal can lie from a judgment in a suit that is a nullity ab initio

Holding

The appeal cannot lie; as the underlying suit was a nullity ab initio, this appeal is likewise a nullity and is dismissed

Reasoning

The Court relied on its prior judgment in Civil Appeal No. 244 of 2010, in which it had determined that HCCC No. 248 of 1997 was a nullity ab initio because the original suit, PMCC No. 918 of 1991, was filed in a court without jurisdiction. A nullity cannot found a valid appeal. The Court adopted the reasons in that judgment, dismissed this appeal, and made no order as to costs since costs had already been awarded in the earlier appeal.

p. 1

Legal principles established

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  • Proceedings founded on a suit that is a nullity ab initio are themselves a nullity and cannot support an appeal
  • A suit filed in a court without jurisdiction is null and void ab initio

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs, costs having been awarded in Civil Appeal No. 244 of 2010

Authorities

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Cases cited (1)

  • Civil Appeal No. 244 of 2010 (Phoenix of E.A. Assurance Company Limited v Simeon Muruchi Thiga T/A Newspaper Service)
On appeal from
High Court of Kenya at Nairobi
HCCC No. 248 of 1997
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Act (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Phoenix of E.A. Assurance Company Limited v Simeon Muruchi Thiga t/a Newspaper Service [2019] KECA 770 (KLR)", Case Analysis (2019). Civil Appeal No. 6 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/770/eng@2019-05-10

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