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Court of AppealPartially AllowedCivil Appeal No. 189 of 2018· [2020] KECA 760 (KLR)

VVA v HSP [2020] KECA 760 (KLR)

Court of Appeal
24 April 2020
RNR.N. NambuyeMartha Karambu KoomeM.K. KoomeFSF. Sichale
4,061 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Kenya's Court of Appeal ruled that maintenance orders survive a withdrawn appeal, and only the Court of Appeal can change its own orders.

What this practically means

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Executive summary

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This was a first appeal against the judgment and orders of Muchelule, J dated 6th March 2018 in HC Divorce Case No. 79 of 2006, by which the High Court struck out the appellant's application dated 19th May 2017 seeking, inter alia, review, setting aside and discharge of maintenance orders made by Rawal, J on 11th February 2010. The marriage had been dissolved in 2008, and the maintenance orders had been modified by the Court of Appeal on 9th July 2010 pending an appeal that the appellant later withdrew. The appellant contended the Judge exercised his discretion wrongly by treating prayer 2 (directed at the Court of Appeal orders) rather than prayer 3 (directed at the High Court maintenance orders) as the live issue, and by deeming the 11th February 2010 orders to have lapsed with the withdrawal of the appeal. The Court of Appeal, applying the test in United India Insurance v East African Underwriters, held that prayer 2 was misdirected to the wrong forum, since only the Court of Appeal could interfere with its own orders, and that the High Court maintenance orders did not lapse with the withdrawal of the notice of appeal. Because the Judge never pronounced himself on prayer 3, there was no decision capable of appellate review on its merits. The appeal was allowed: the orders of 6th March 2018 were set aside and the matter remitted for rehearing of prayer 3 by a Judge other than Muchelule, J, with each party bearing its own costs.

Key legal issues

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01

Scope of appellate interference with judicial discretion on a first appeal

Holding

The Judge exercised his discretion wrongly by deeming the maintenance orders of 11th February 2010 to have lapsed upon withdrawal of the notice of appeal, since those were the very orders appealed against

Reasoning

The Court adopted the classic test from United India Insurance v East African Underwriters: interference is warranted where the Judge misdirected himself in law, misapprehended the facts, considered irrelevant matters, failed to consider relevant matters, or where the decision is plainly wrong. The Judge confused the High Court orders of 11th February 2010 with the Court of Appeal orders of 9th July 2010, which alone had lapsed with the withdrawal of the appeal. This was a misapprehension of the facts warranting interference.

p. 4
02

Competence of the High Court to review orders made by the Court of Appeal

Holding

Prayer 2, which sought review, setting aside and discharge of the Court of Appeal orders of 9th July 2010, was directed at the wrong forum and did not fall for the Judge's determination

Reasoning

Orders granted by the Court of Appeal were incapable of being interfered with by the High Court; only the Court of Appeal could interfere with them. Further, the stay sought was expressly limited to pending hearing inter partes and thus lapsed automatically upon inter partes hearing, and being anchored on the notice of appeal, it lapsed with its withdrawal. The Court nonetheless affirmed that prayer 2 was not properly before the Judge.

p. 4
03

Remittal where the court below made no determination on the substantive prayer

Holding

Since the High Court never pronounced itself on the merits of prayer 3, the Court of Appeal had no decision capable of being reviewed and remitted the matter for rehearing before a different Judge

Reasoning

On a first appeal the Court of Appeal may re-appraise the evidence and draw inferences of fact under Rule 29(1) of the Court of Appeal Rules, but it rules on the evidence on record and does not introduce extraneous matters not dealt with by the parties below. The Judge failed to pronounce himself on prayer 3 based on the erroneous assumption that it had lapsed with the withdrawal of the appeal. That was a wrong exercise of discretion; there being no decision to review, the proper course was remittal.

p. 4

Legal principles established

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  • An appellate court may interfere with the exercise of judicial discretion only where the Judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or where the decision is plainly wrong
  • Orders granted by the Court of Appeal cannot be reviewed, set aside or discharged by the High Court; only the Court of Appeal has the mandate to interfere with its own orders
  • Maintenance orders made by the High Court do not lapse automatically upon the withdrawal of a notice of appeal against them; they remain amenable to review, setting aside or discharge

Court orders

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  1. 1.Prayer 2 of the application dated 19th May, 2017 did not fall for determination by the Judge as at the time the application was determined
  2. 2.The orders of 6th March, 2018 are set aside
  3. 3.The matter is remitted back to the High Court for rehearing of prayer 3 of the application dated 19th May, 2017 by a Judge other than A.O. Muchelule, J
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Marriage Actsection 78(c) and (d)
  • Marriage Actsection 78
  • Marriage Actsection 80
  • Civil Procedure Actsection 1A and 1B
  • Matrimonial Causes Act (repealed)section 25(2)
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 29(1)
  • Civil Procedure RulesOrder 45 Rule 1(b)

Cases cited (14)

  • Mbogo and another versus Shah
    [1968] EA 93
  • Price & another versus Hilder
    [1984] eKLR
  • P.K.M. versus P.R.M
    [2017] eKLR
  • MUM versus BML
    [2012] eKLR
  • PMAV versus EGMC
    [2016] eKLR
  • Kershaw versus Kersaw
    [1964] 3 ALL ER 653
  • WMM versus BML
    [2012] eKLR
  • K versus K, Civil Appeal No. 74 of 1984
  • RPM versus PKM
    [2015] eKLR
  • Gulabchand Popatlal Shah, Civil Application No. 8 of 1990 (UR)
  • Econet Wireless Kenya Limited versus Minister for Information & Communication of Kenya & Another
    [2005] eKLR 281
  • United India Insurance Company Limited versus East African Under Writers Kenya Limited
    [1985] KLR 89
  • Kinga versus Kinga & another
    [1988] KLR 348
  • Abok James Odera t/a A.J. Odera & Associates versus John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
On appeal from
High Court of Kenya at Nairobi, Family Division
HC Divorce Case No. 79 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal under Rule 29(1) of the Court of Appeal Rules

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, "VVA v HSP [2020] KECA 760 (KLR)", Case Analysis (2020). Civil Appeal No. 189 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/760/eng@2020-04-24

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