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Court of AppealDismissedCivil Appeal No 269 of 2017· [2020] KECA 207 (KLR)

Daniel Maingi Muchiri v Jubilee Insurance Co. Ltd [2020] KECA 207 (KLR)

Court of Appeal
6 November 2020
3,664 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed an appeal over released insurance funds, ruling the appeal was invalid because the appellant never obtained required court permission to appeal.

What this practically means

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Executive summary

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The appellant, who had obtained a decree in the Chief Magistrate's Court against the insureds of Jubilee Insurance Co. Ltd, succeeded in a declaratory suit and in a striking-out application, with the decretal sum deposited in court pursuant to a stay pending the respondent's (unsuccessful) appeal. Upon an attempt to settle the decretal sum with accrued interest, the respondent's application for release of the balance of Kshs 359,676.19 was allowed by Mwongo, J. on 19th June 2017, after the appellant's counsel failed to attend despite service. The appellant appealed, contending that the High Court was functus officio, that his rights to property, fair trial and access to justice were violated, and seeking damages of Kshs 50 million and Kshs 300 million for himself and his counsel, plus admonishment of the Judge. The Court of Appeal first dealt with jurisdiction: the High Court application had been brought under Order 22 Rules 1 and 2 of the Civil Procedure Rules, 2010, which is not among the orders in Order 43(1) appealable as of right, so leave was required under Order 43(2) and Section 75 of the Civil Procedure Act and Rule 39(b) of the Court of Appeal Rules; in its absence the appeal was incompetent. On the merits, the Court found no error in the Judge's reliance on the Executive Officer's interest computation and the recorded consent. The Court held it had no jurisdiction to entertain constitutional-rights claims or award damages, its jurisdiction being purely appellate, and dismissed the claim about Majanja Luseno & Company as fanciful. The appeal was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Competency of the appeal for want of leave

Holding

The application before the High Court was brought under Order 22 Rules 1 and 2 of the Civil Procedure Rules, which is not among the orders listed in Order 43(1) under which appeals lie as of right; leave was therefore necessary and its absence rendered the appeal incompetent.

Reasoning

The application dated 7th March 2016 was explicitly premised on Order 22 Rules 1 and 2 and Order 51 Rule 1; Order 40 (temporary injunctions) had no application. Order 43(2) requires leave for appeals from any other order, and Order 43(3) and Rule 39(b) of the Court of Appeal Rules prescribe how and when leave must be sought. Following Peter Nyaga Muvake v Joseph Mutunga and Kenya Commercial Bank v Manaseh Esipeya, the failure to seek leave meant no valid notice of appeal was lodged and the Court's jurisdiction was not properly invoked.

p. 3
02

Whether the High Court erred in releasing the balance of the deposited decretal sum to the respondent

Holding

The learned Judge did not err: the appellant failed to compute the accrued interest despite requests, failed to attend the hearing despite service, and a consent had been recorded for release of Kshs 1,057,937.84 to the appellant's counsel.

Reasoning

The respondent's counsel twice requested the appellant's counsel to compute accrued interest, and failing that, obtained the Executive Officer's computation. On the hearing dates the appellant's counsel did not appear despite service, made no submissions and did not oppose the application. The Judge was entitled to rely on the Executive Officer's computation and on the recorded consent releasing the bulk of the funds to the appellant.

p. 4
03

Alleged denial of fair trial, access to justice and constitutional violations

Holding

The appellant was not denied a fair trial or access to justice, having failed to attend the hearing despite service; and this Court, being purely appellate, has no jurisdiction to determine constitutional rights violations or award damages for them.

Reasoning

The appellant's counsel was served but did not attend the hearing on 19th June 2017, so the hearing was not unfairly conducted. As to constitutional redress, the impugned ruling did not relate to rights violations, and the Court lacks original jurisdiction over enforcement petitions, consistent with its earlier decision in Daniel Maingi Muchiri v Jubilee Insurance Company Ltd [2017].

p. 4
04

Firm bearing the name of a sitting judge (Majanja Luseno & Company)

Holding

The claim was frivolous: Majanja, J. resigned from the firm on appointment and did not hear any of the suits or appeals; mere suspicion cannot vitiate the ruling, and the issue was a new issue raised for the first time on appeal.

Reasoning

Relying on its prior judgment in this matter and in Peter Odiwour Ngoge & Another v Jubilee Insurance Co. Ltd, the Court reiterated that a ruling is not vitiated merely because the respondent's firm bears the name of a judge who formerly practiced in it and who took no part in the dispute. New issues not raised in the High Court will not be entertained.

p. 4

Legal principles established

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  • Where an order is not listed in Order 43(1) of the Civil Procedure Rules, an appeal lies only with leave; failure to obtain leave renders the appeal incompetent and the Court has no jurisdiction to hear it
  • The Court of Appeal, having purely appellate jurisdiction, cannot entertain claims for enforcement of constitutional rights or award damages for constitutional violations that were not determined by the High Court

Court orders

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  1. 1.The appeal is dismissed in its entirety
  2. 2.Costs of the appeal to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 43
  • Constitution of Kenya, 2010Article 28
  • Constitution of Kenya, 2010Article 29
  • African Charter on Human and Peoples' RightsArticle 14
  • Civil Procedure ActSection 75
  • Civil Procedure Rules, 2010Order 22 Rules 1 and 2
  • Civil Procedure Rules, 2010Order 40
  • Civil Procedure Rules, 2010Order 43(1), (2) and (3)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Court of Appeal Rules, 2010Rule 39(b)
  • Court of Appeal Rules, 2010Rules 42 and 43

Cases cited (7)

  • Daniel Maingi Muchiri v Jubilee Insurance Company Ltd [2017] eKLR
    [2017] eKLR
  • Kakuta Maimai Hamisi v Peris Pesi Tobiko & 2 others [2013] eKLR (Civil Appeal 154 of 2013)
    [2013] eKLR
  • The Owners of the Motor Vessel 'Lillian S' v Caltex Kenya Ltd [1989] KLR 1
    [1989] KLR 1
  • Peter Nyaga Muvake v Joseph Mutunga [2015] eKLR (Civil Application Nai 86 of 2015)
    [2015] eKLR
  • Kenya Commercial Bank Limited v Manaseh Esipeya [1999] eKLR
    [1999] eKLR
  • Peter Odiwour Ngoge & Another v Jubilee Insurance Co. Ltd & Another, CA No. Nai. 298 of 2015
  • George Owen Nandy v. Ruth Watiri Kibe, CA No. 39 of 2015
On appeal from
High Court of Kenya at Nairobi
HCCA No 195 of 2014
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution; competency governed by Section 75 of the Civil Procedure Act, Order 43 of the Civil Procedure Rules, 2010 and Rule 39(b) of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Daniel Maingi Muchiri v Jubilee Insurance Co. Ltd [2020] KECA 207 (KLR)", Case Analysis (2020). Civil Appeal No 269 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/207/eng@2020-11-06

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