Daniel Maingi Muchiri v Jubilee Insurance Co. Ltd [2020] KECA 207 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competency of the appeal for want of leave
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.
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.
Whether the High Court erred in releasing the balance of the deposited decretal sum to the respondent
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.
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.
Alleged denial of fair trial, access to justice and constitutional violations
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.
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].
Firm bearing the name of a sitting judge (Majanja Luseno & Company)
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed in its entirety
- 2.Costs of the appeal to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.