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ELCOtherNyeri HCCC No. 313 of 1998 (application dated 22nd August 2018)· [2019] KEELC 3704 (KLR)

Elizabeth Wambui Kamicha v Teresia Wambui Mugi & another [2019] KEELC 3704 (KLR)

High Court of Kenya
28 March 2019
1,410 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court ruled it cannot reinstate a judgment the Court of Appeal has already set aside; the case must be heard afresh from scratch.

What this practically means

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Executive summary

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The plaintiff sought reinstatement of a judgment delivered by Sergon J on 17th September 2010 in Nyeri HCCC No. 313 of 1998, which had ordered the 1st defendant's eviction from House No. 1000 Kimathi Estate, Thika, rectification of the tenancy register, restitution of goods carted away during an eviction on 28th June 2010, and damages of Kshs. 200,000 for unlawful eviction. The Court of Appeal had set aside that judgment and directed that the matter be heard de novo, with the defendants to file an amended defence within 30 days. The defendants did not comply, and the plaintiff argued she could not set the matter down for hearing for that reason. The 2nd defendant, through Joseph Gathogo Wairegi, opposed the application as an abuse of process, contending that no judgment existed capable of reinstatement, and asked that the amended defence filed on 21st September 2018 be admitted. Waithaka J held that a trial de novo means hearing the matter afresh as if never heard, so no judgment remained to be reinstated; the High Court has no jurisdiction to overturn the Court of Appeal's decision, and any such orders would be nullities. The court, however, exercised discretion under Sections 1A, 1B and 3A of the Civil Procedure Act to deem the amended defence properly filed, finding no prejudice to the plaintiff. The matter was set down for pretrial directions on 29th April 2019, with costs of the application to abide the outcome of the suit.

Key legal issues

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01

Whether a judgment set aside by the Court of Appeal can be reinstated

Holding

It cannot; the court lacks jurisdiction to reinstate a judgment set aside by a superior court.

Reasoning

A trial de novo means hearing the matter afresh as if never heard before, with no evidence taken and no decision previously rendered. Once the Court of Appeal set aside Sergon J's judgment and directed a de novo trial, nothing remained to reinstate. Reinstating it would amount to the High Court overturning the Court of Appeal's decision, which is beyond its jurisdiction, and such orders would be nullities.

p. 2
02

Whether the late amended defence should be admitted

Holding

Yes; the amended defence dated 21st September 2018 was deemed properly filed.

Reasoning

The Court of Appeal itself directed the filing of an amended defence, recognising a defence already on record. Though the defendants delayed for years, the plaintiff suffered no prejudice since she could have set the matter down for hearing but did not. Courts must determine underlying issues and not give undue regard to procedural infractions, under Sections 1A, 1B and 3A of the Civil Procedure Act.

p. 2

Legal principles established

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  • A judgment set aside by a superior court with a direction for trial de novo cannot be reinstated by the subordinate court.
  • A court cannot arrogate to itself jurisdiction exceeding that conferred by the Constitution or written law.

Court orders

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  1. 1.The amended defence dated 21st September 2018 is deemed properly filed and admitted
  2. 2.Matter to be set down for pretrial directions on 29th April 2019
  3. 3.Costs of the application to abide the outcome of the suit
On appeal from
Court of Appeal
Jurisdiction invoked
Jurisdiction conferred by the Constitution and written law; discretion exercised under Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Elizabeth Wambui Kamicha v Teresia Wambui Mugi & another [2019] KEELC 3704 (KLR)", Case Analysis (2019). Nyeri HCCC No. 313 of 1998 (application dated 22nd August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3704/eng@2019-03-28

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