David Kemei v Energy Regulation Commission & 2 others [2020] KECA 404 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a man's 2011 lawsuit, ruling that time limits for hearing cases must exclude Sundays, holidays, and the December court recess.
What this practically means
#Executive summary
#Key legal issues
#Computation of the conditional six months period for prosecuting the suit
The High Court erred in concluding without any computation that the six months ordered by Riechi J had lapsed; under Order 50 Rule 4 of the Civil Procedure Rules the period excludes Sundays, public holidays and the December court recess, so the appellant may still have been within time.
The Court found that Githua J and even counsel concluded the six months had expired without any computation. Counting six months from 18th September 2017 gives 17th March 2018 on the ordinary calendar, but Order 50 Rule 4 excludes Sundays, public holidays and the December court recess, which could place the appellant within the timelines. The correct computation was a relevant matter the Judge failed to consider.
Whether the appellant took sufficient steps to prosecute the suit within the conditional period
The appellant took sufficient steps before expiry of the six months: he wrote to the Deputy Registrar on 2nd February 2018 seeking a hearing date, a hearing date was fixed for 11th April 2018, and a hearing notice dated 12th February 2018 was served on the respondents.
The record showed the appellant invited the respondents to fix a mutually convenient hearing date on 7th February 2018, a date was allocated by the registry for 11th April 2018, and the hearing notice was served the same day it was taken out. The Court took judicial notice that hearing dates are allocated by the registry and parties do not control their availability. The appellant could not be accused of inexcusable indolence.
Whether the learned Judge properly exercised her discretion in dismissing the suit suo motu
The learned Judge failed to consider relevant matters - the correct computation of time and the appellant's efforts to list the suit - and dismissed the suit suo motu without hearing the parties, denying the appellant the right to be heard and causing grave injustice.
Applying the Mbogo v Shah parameters, the Court found the Judge failed to consider relevant matters and thereby arrived at a wrong decision. She dismissed the suit suo motu before considering all circumstances, denying the appellant the right to be heard. Hearing the matter on merit would occasion no prejudice to the respondents. The discretion was therefore improperly exercised and liable to be interfered with.
Legal principles established
#- An appellate court will not interfere with a trial court's exercise of discretion unless the trial court misdirected itself, considered matters it should not have, or failed to consider matters it should have, and in so doing arrived at a wrong decision.
- In computing time under the Civil Procedure Rules, the period excludes Sundays, public holidays and the court recess in December.
- Steps taken by a litigant to set a suit down for hearing before expiry of a conditional timeline must be counted; attempts to set the suit down for hearing ought to count for something and cannot be brushed off as inconsequential.
- A litigant cannot be faulted where hearing dates are fixed by the registry and the party is not in control of the availability of hearing dates.
- Counsel's concession in court on the lapse of a conditional period does not deprive a party of the right to challenge that finding on appeal where the law was not applied as it should have been.
- The order setting aside the dismissal was made and the suit reinstated, with each party bearing its own costs.
Court orders
#- 1.The order of Githua J dated 11th April 2018 is set aside
- 2.The appellant's suit, HCCC No. 461 of 2011, is reinstated
- 3.Each party to bear its own costs here and at the High Court
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 461 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over High Court decisions (Constitution of Kenya, Article 164; Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kemei v Energy Regulation Commission & 2 others [2020] KECA 404 (KLR)", Case Analysis (2020). Civil Appeal No. 408 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/404/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.