John Mwangi Muhia & 2 others v Director of Public Prosecutions & 5 others [2019] KECA 845 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that accepting a court hearing notice 'under protest' does not excuse missing court, and your case can be dismissed for it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether receiving a hearing notice under protest absolves, relieves or excuses a party from appearing or attending court on the scheduled date
- 2.Whether hearing date and management of court diary is subject to the convenience and diary of counsel
- 3.Whether the trial court had jurisdiction to dismiss a constitutional petition for want of prosecution before the expiry of one year under Order 17 of the Civil Procedure Rules
- 4.Whether the appellants were denied a right to be heard by the dismissal of the Petition
- 5.Whether this Court could award general and exemplary damages to the appellants and their counsel on appeal
Key legal issues
#Effect of receiving a hearing notice under protest
Receiving a hearing notice under protest does not absolve or excuse a party from appearing on the scheduled date; it is not a procedure known to law and confers no right or privilege.
Relying on Sarfraz Motors v Kisii Hardware and the trial court's decision in The Matter of Town Clerk of the City Council of Nairobi, the Court held that an endorsement 'under protest' is at most an alert that a party may seek an adjournment; it is not an application for adjournment and does not dilute the notice. Counsel should have sent another counsel to hold brief or applied for adjournment through proper channels.
Court diary versus counsel's diary
Hearing dates are fixed by the court's diary and are not subject to the convenience or diary of a party or counsel.
Counsel's protest that the 3rd December 2012 date was inconvenient to his diary was not a factor excusing non-attendance. The notice was properly served, counsel acknowledged receipt and chose not to attend; service was therefore proper and the contention that counsel was unaware of the date had no merit.
Jurisdiction to dismiss a constitutional petition for want of prosecution
The trial court had jurisdiction to dismiss the constitutional petition, grounded in Rules 6 and 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, which impose a duty to participate and preserve the court's inherent power to prevent abuse of process.
Although the appellants argued Order 17 of the Civil Procedure Rules did not apply to constitutional petitions, the Court examined the 2013 Practice Rules: Rule 6 imposes a duty to participate and comply with directions, and Rule 8 preserves the inherent power to make orders necessary for the ends of justice and to prevent abuse of process. The appellants' failure to attend amounted to abuse of process.
Right to be heard versus dismissal for want of prosecution
The dismissal did not violate natural justice because counsel was properly served with the Notice to Show Cause and chose not to attend; no prejudice was demonstrated as all issues could be raised before the trial magistrate.
Applying Ivita v Kyumba, the test is whether delay is prolonged and inexcusable and whether justice can be done despite the delay. The appellants gave no explanation for the delay and showed no prejudice from the dismissal, since criminal proceedings guarantee a fair hearing. The appellants were the authors of their own misfortune.
Appellate power to award damages
An appellate court has no original jurisdiction to determine violations of human rights or assess general or exemplary damages; the prayer for damages to appellants' counsel also failed because he was not a party to the suit.
Assessment and award of general and exemplary damages lies within the jurisdictional competence of a trial court with original jurisdiction. The alleged violation of counsel's rights had not been determined on merit by any court of competent original jurisdiction, and counsel had filed no plaint, petition or claim.
Legal principles established
#- Receiving a hearing notice under protest does not excuse a party from attending court on the scheduled date; such protests confer no right or privilege in law
- It is the court's diary that determines hearing dates, not the diary or convenience of a party or counsel
- Receiving a hearing notice or court documents under protest is not a procedure known to law
- A constitutional court retains jurisdiction to dismiss a petition for abuse of process and to issue directions under the duty to participate in proceedings, and the dictates of justice require matters filed under a certificate of urgency to be prosecuted expeditiously
- An appellate court has no original jurisdiction to determine violations of human rights or assess general or exemplary damages
Court orders
#- 1.The appeal was dismissed with costs to the 2nd, 3rd and 5th respondents
- 2.The trial court's dismissal of the Petition for want of prosecution and the ruling of 17th October 2013 refusing reinstatement were upheld
- 3.The prayers for general and exemplary damages and for quashing of the Makadara Criminal Case were refused
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Petition No. 249 of 2012
- Jurisdiction invoked
- First appeal from the High Court sitting as a constitutional court; appellate jurisdiction over dismissal of a constitutional petition for want of prosecution
Relief refused
#Assessment and award of general and exemplary damages to the appellants and their counsel
Being an appellate court, it has no original jurisdiction to determine violations of human rights or assess damages; counsel for the appellants is not a party to the suit
Halting of Makadara Criminal Case No. 2878 of 2012 and quashing of any resulting conviction or imprisonment
These prayers can only be determined after a hearing of the Petition on merit by a court with original jurisdiction
Reinstatement of the Petition and interference with the trial court's discretion
The appellants did not explain the delay and no prejudice was shown
Costs
The appeal was dismissed with costs to the 2nd, 3rd and 5th respondents
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 find and hold that if a party is served with a hearing notice, receiving the same under protest does not absolve or excuse the party from appearing and attending court on the scheduled date.
Receiving a hearing notice or any court documents under protest is not a procedure known to law. Such protests confer no right or privilege in law do not dilute the notification, and are an exercise in futility.
Further, it is the court’s diary that determines hearing dates and not the diary or convenience of a party.
Being an appellate Court, we have no original jurisdiction to determine violation of human rights and assess general or exemplary damages.
This appeal has no merit and is hereby dismissed with costs to the 2nd, 3rd and 5th respondents.
Issues in the judgment
#Duplicate paragraph numbering in the judgment: the number 22 is used twice (once for the Bosire JA passage and once for the Court's analysis) and the Odunga J quote appears under a paragraph numbered 22 within a passage already numbered 22.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutengu & 2 others (Suing in their Capacity as the Chairperson, Secretary, Treasurer and on Behalf of of 650 Members of Sabati Self Help Group) v Numerical Machining Complex Limited & 3 others (Environment and Land Petition E008 of 2022) [2026] KEELC 2131 (KLR)[2026] KEELC 2131 (KLR)21 Apr 2026applied
Cite this brief
#Cite this brief
Caselaw, "John Mwangi Muhia & 2 others v Director of Public Prosecutions & 5 others [2019] KECA 845 (KLR)", Case Analysis (2019). Civil Appeal No. 339 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/845/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.