Kuria v Muriithi
The bottom line
#Kenya's Court of Appeal dismissed a litigant's attempt to revive a struck-out application, confirming that citing the wrong laws is fatal, not a fixable technicality.
What this practically means
#Executive summary
#Key legal issues
#Whether an application in the Court of Appeal may be brought under the Civil Procedure Act and Civil Procedure Rules
No - such an application is fatally defective because it invokes the wrong jurisdictional framework
The court held that the governing instruments of the Court of Appeal are a matter of public notoriety: the Appellate Jurisdiction Act, Cap 9 and the Court of Appeal Rules. Invoking the Civil Procedure Act and Rules instead goes to jurisdiction and cannot be saved by Article 159(2)(d) of the Constitution, which was never intended to excuse non-compliance with procedural imperatives.
Whether an application already struck out can be reinstated
No - once struck out, there is nothing left to reinstate; the proper route, if any, would be an application to rescind the order on a proper basis
The underlying extension-of-time application had been struck out by the single judge on 7 August 2020 as an abuse of process for want of service. The reinstatement application therefore sought to revive a dead application. The court noted rules provide for rescission of orders, but that was not the relief sought, and in any event a proper basis must be established.
Legal principles established
#- An application founded on the wrong provisions of law goes to the jurisdiction of the court and is not a curable technicality under Article 159 of the Constitution
- Proceedings in the Court of Appeal are governed by the Appellate Jurisdiction Act, Cap 9, and the Court of Appeal Rules, not the Civil Procedure Act and Rules
Court orders
#- 1.The applicant's notice of motion seeking reinstatement of the application dated December 11, 2019 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Court of Appeal (single judge, M. K. Koome, JA as she then was)
- Jurisdiction invoked
- Sections 1A, 3, 3A, 63(e) of the Civil Procedure Act and Order 22 rules 51-54 of the Civil Procedure Rules (invoked by applicant); court holds the correct governing framework is the Appellate Jurisdiction Act, Cap 9 and the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuria v Muriithi", Case Analysis (2022). Civil Application 53 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1406/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.