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Court of AppealDismissedNot stated in the judgment

Andrew Nganga Munyua & 64 Others v Attorney General [1976] KECA 14 (KLR)

Court of Appeal of Kenya
10 March 1976
1,758 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an appeal to the Court of Appeal against an order of Waiyaki J in the High Court striking out a plaint and dismissing a suit with costs. Sixty-five plaintiffs, describing themselves as persons tortured and whose properties were confiscated during the colonial emergency, sued the Attorney-General for compensation, restoration of properties and pensions. The Attorney-General applied by chamber summons under order VI, rules 8, 13 and 14 and order VII, rule 5 of the Civil Procedure Rules for the plaint to be struck out. The judge held the claim failed under the Indemnity Ordinance and was statute-barred under the Fatal Accidents Act and the Public Officers Protection Act. The Court of Appeal, in a single judgment of the whole court delivered by Law VP, dismissed the appeal with costs. It held that the strike-out application could be heard before a defence was filed under order VI, rule 13, applying the Duchy of Lancaster case. Good faith under the Indemnity Ordinance is deemed to exist unless the contrary is proved, and section 3(4) of that Ordinance so provides. The claim for lives lost could only lie under the Fatal Accidents Act, which imposes a three-year limit. The Court, following Attorney-General for Kenya v Hayter, held that the Government as successor to the colonial government could rely on the Public Officers Protection Act's limitation period. The tort claims were also barred by section 4(2) of the Limitation of Actions Act, thirteen years having elapsed since the causes of action accrued.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court could entertain the Attorney-General's application to strike out the plaint before a defence was filed
  2. 2.Whether the High Court erred in refusing to set the suit down for formal proof
  3. 3.Whether the judge erred in relying on the Indemnity Ordinance given the requirement of good faith
  4. 4.Whether the claim for compensation for lives lost was governed by the Fatal Accidents Act and time-barred
  5. 5.Whether the Public Officers Protection Act applied and whether the Government could rely on its limitation period
  6. 6.Whether the claim was barred by section 4(2) of the Limitation of Actions Act

Key legal issues

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01

Whether a strike-out application may be heard before a defence is filed

Holding

Yes. The High Court may entertain an application to strike out a plaint at any stage of the proceedings under order VI, rule 13, and the English authority confirms that such an application may be made before the defence is served.

Reasoning

The Attorney-General had entered appearance, and when he filed his application the time for filing a defence had not yet expired. Order VI, rule 13 then in force permitted the High Court to entertain a strike-out application at any stage. The English case of Attorney-General of Duchy of Lancaster v London & North Western Railway, decided under the corresponding rule, held that the application may be made before the defence is served, and the Court held the position in Kenya to be the same.

p. 2
02

Effect of the Indemnity Ordinance and the requirement of good faith

Holding

The Indemnity Ordinance bars the claim; good faith is deemed to exist unless the contrary is alleged and proved, and section 3(4) of the Ordinance itself so provides.

Reasoning

Counsel argued that the Ordinance protected only acts done in good faith and that there was no evidence of good faith. The Court answered in two ways: first, as a general rule of statutory construction, good faith is presumed unless the contrary is alleged and proved; secondly, section 3(4) of the Indemnity Ordinance itself deems any act referred to in the Ordinance to have been done in good faith unless the contrary is proved. The plaintiffs had adduced no evidence to displace that presumption.

p. 3
03

Whether the claim was statute-barred under the Fatal Accidents Act, the Public Officers Protection Act and the Limitation of Actions Act

Holding

Yes. The claim for lives lost lay only under the Fatal Accidents Act (three-year limitation); claims for wrongs by public officers fell under the Public Officers Protection Act (six-month limitation), which the Government as successor could invoke; and the tort claims were barred by section 4(2) of the Limitation of Actions Act.

Reasoning

The plaint claimed compensation for lives lost, which can only lie under the Fatal Accidents Act, whose section 4 requires action within three years of death. The alleged acts of confiscation and torture were committed by soldiers, policemen, administrative officers and quasi-military forces who were public officers, and suits against them would have had to be brought within six months under section 2 of the Public Officers Protection Act. Following Attorney-General for Kenya v Hayter, the present Government, as successor to the colonial government, could rely on that limitation. The tort claims were also barred by section 4(2) of the Limitation of Actions Act, thirteen years having elapsed.

p. 3
04

Capacity and procedural defects in the plaint

Holding

The plaint was irregular and defective: it was signed only by the first plaintiff who was not shown to be a recognised agent of the other 64 plaintiffs; the fifth plaintiff was said to be registered under a non-existent Community Development Act and thus had no legal capacity; and order 1, rule 8 (representative suits) had not been complied with. However, the Court, like the judge below, overlooked these technical points and decided the substantive issues.

Reasoning

Order VI, rule 14 requires a plaint to be signed by an advocate, recognised agent or a party suing in person; nothing showed the first plaintiff was the recognised agent of the others. The fifth plaintiff's claimed registration under the Community Development Act was fictitious, as no such Act exists, so it lacked capacity to sue. If the first plaintiff purported to represent the others, order 1, rule 8 had not been complied with. The Court nonetheless chose to overlook these procedural defects and deal with the points of substance.

p. 2

Legal principles established

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  • An application to strike out a plaint may be entertained by the High Court at any stage of the proceedings, including before a defence is served.
  • Where good faith is referred to in a statute, it is deemed to exist unless the contrary is alleged and proved; the Indemnity Ordinance expressly deems acts done in good faith unless the contrary is proved.
  • The Government, as successor to the colonial government, is entitled to rely on the limitation period prescribed by the Public Officers Protection Act to the same extent as the public officer concerned.
  • A claim for compensation for lives lost can only lie under the Fatal Accidents Act, and must be commenced within three years of the death.
  • An action founded on tort may not be brought after three years from the date the cause of action accrued under section 4(2) of the Limitation of Actions Act.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal from an order of the High Court striking out a plaint and dismissing the suit (no specific constitutional or statutory basis stated in the judgment)

Relief refused

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Appeal against striking out of the plaint and dismissal of the suit

The claim was statute-barred under the Fatal Accidents Act, the Public Officers Protection Act and the Limitation of Actions Act, and immune under the Indemnity Ordinance

p. 3

Formal proof of the suit

Once the plaint was struck out there was no suit capable of formal proof

p. 2

Costs

Appeal dismissed with costs (appellants to pay the respondent's costs)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For these reasons we have no doubt that the application, the subject of this appeal, was correctly decided by the judge, and we dismiss this appeal with costs.
p. 3Final orders - appeal dismissed
Appeal dismissed with costs.
p. 3Disposition
By order VI, rule 13 (as then in force), the High Court can entertain an application to strike out a plaint “at any stage of the proceedings”.
p. 2Strike-out applications before defence
Where “good faith” is referred to in a statute, it is deemed to exist unless the contrary is alleged and proved.
p. 3Presumption of good faith
The Crown is entitled to rely on the limitation prescribed by the Public Officers’ Protection Ordinance to the same extent that the officer concerned could do so.
p. 3Government entitled to public officers' limitation protection
It was also barred, in our view, by section 4(2) of the Limitation of Actions Act which provides that an action founded on tort may not be brought after the end of three years from the date when the cause of action accrued.
p. 3Limitation of tort claims

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, "Andrew Nganga Munyua & 64 Others v Attorney General [1976] KECA 14 (KLR)", Case Analysis (1976). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1976/14/eng@1976-03-10

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