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Court of AppealDismissedCourt of Appeal Appeal (Nyeri High Court suit, O'Kubasu J)

Karugi & another v Kabiya & 3 others (Civil Appeal 80 of 1982) (Civ) [1983] KECA 38 (KLR)

Court of Appeal of Kenya
16 November 1983
AHA.R.W. HancoxZCZ.R. ChesoniHPH.G. Platt
1,125 words in judgment
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The bottom line

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The Court of Appeal dismissed the appeal because the landowners sued the wrong people instead of the authorities who actually issued the stop orders.

What this practically means

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Executive summary

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The appellants, registered proprietors of Plot No. 18A Kiawarigi Market allocated in 1946, sued the respondents in the High Court at Nyeri claiming that stop-construction orders issued by the County Council of Nyeri, the District Officer for Mathira Division and the Chief of Konyu Location in late 1980 were made at the respondents' instance. They sought leave to continue development, a perpetual injunction, general and special damages and costs. O'Kubasu J dismissed the suit, holding that the appellants had sued the wrong parties: the Council, D.O. and Chief who actually issued the orders had neither been sued nor joined, and the evidence did not show they acted on the respondents' instructions. On appeal, Chesoni Ag JA (whose draft the other members adopted) held there was no admissible evidence linking the respondents to the stoppage orders, that mere allegations of inquiries amounting potentially to hearsay were insufficient, and that the suit disclosed no cause of action and could not be saved by Order 1 r.9. Hancox JA held the burden of proof is not lessened because a case proceeds by formal proof; Platt Ag JA cautioned against relying on unchallenged but intrinsically unreliable evidence and stressed that the maker of an impugned order must be impleaded since public bodies may act independently in their own discretion. The appeal was dismissed with no order as to costs. The decision affirms the trial court's dismissal and binds lower courts on burden of proof in uncontested hearings and on impleading the actual decision-maker.

Questions the Court framed

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

  1. 1.Whether the respondents instructed the County Council, the District Officer and the Chief to stop the appellants' construction, so as to found liability
  2. 2.Whether a plaintiff proceeding by way of formal proof (uncontested hearing) bears a lesser burden of proof
  3. 3.Whether the appellants should have joined the Council, the District Officer and the Chief as parties
  4. 4.Whether the suit disclosed a cause of action against the respondents notwithstanding Order 1 r.9 of the Civil Procedure Rules

Key legal issues

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01

Nexus between the respondents and the stoppage orders

Holding

There was no admissible evidence connecting the respondents with the orders of the Council, D.O. and Chief; no cause of action lay against the respondents.

Reasoning

The appellants alleged the Council, District Officer and Chief stopped construction on the respondents' instructions, but relied only on inquiries which might have been hearsay. Both the trial judge and the Court of Appeal found no proof of the nexus, and the wrong parties had been sued. Order 1 r.9 could not save the suit.

p. 2
02

Burden of proof in formal proof proceedings

Holding

A plaintiff proceeding where there is no valid defence still bears the ordinary burden of proving his case; uncontradicted evidence may be rejected if intrinsically unreliable.

Reasoning

The appellants argued that a bare assertion in the plaint plus uncontradicted testimony suffices in formal proof. Hancox JA and Platt Ag JA rejected this: the burden is unchanged, though possibly easier to discharge; and the court need not accept inherently unreliable evidence however unchallenged.

p. 2
03

Impleading the decision-maker

Holding

The person or body that actually gave the impugned order must be impleaded, as public bodies may act independently in their own discretion.

Reasoning

Platt Ag JA stressed that care is needed where a public body acts in its own discretion; those who caused the dispute may not be those who made the order. The Council, D.O. and Chief should have been sued and, at minimum, joined.

p. 1

Legal principles established

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  • A plaintiff must prove his case to the same standard whether or not the suit is defended; formal proof does not lighten the burden of proof.
  • A plaintiff seeking to hold a party liable for an order made by a public body must sue the body or officer who actually made the order.
  • Evidence of a plaintiff's inquiries about who instructed a public body, if merely alleged and potentially hearsay, is insufficient to establish the requisite nexus.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

The bench

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

ZC
majority

Wrote the judgment

Wrote the leading judgment: the appellants sued the wrong party; no admissible evidence connected the respondents with the Council, D.O. and Chief who stopped construction; no cause of action against the respondents and not saved by Order 1 r.9; appeal dismissed with no order as to costs.

There was no cause of action against the respondents and this was not a case to be saved by Order 1 r. 9 of the Civil Procedure Rules.p. 1
AH
concurring

Concurred with Chesoni Ag JA: no shred of admissible evidence linked the respondents to the orders; formal proof does not lighten the burden of proof; appeal dismissed with no order as to costs.

I wholly agree with Chesoni Ag JA (whose judgment I have had the advantage of reading in draft), that there was not a shred of admissible evidence to connect the respondents with that which was done by the authorities concerned.p. 2
HP
concurring

Emphasised that 'formal proof' is no longer part of the Civil Procedure Rules and that a plaintiff must still prove his case; the party who actually issued the impugned order should be impleaded; agreed the appeal be dismissed.

The learned judge was quite right to insist that the person who actually gave the order impugned be impleaded in the first place.p. 2
On appeal from
High Court of Kenya at Nyeri
Not stated
Jurisdiction invoked
Appeal to the Court of Appeal (statutory first appeal from High Court decision)

Relief refused

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Injunction and damages against the respondents for procuring the stoppage of construction

The appellants failed to prove the Council, D.O. and Chief acted on the respondents' instructions and sued the wrong parties; no cause of action against the respondents.

p. 1

Reduced burden of proof in a case heard by way of formal proof

Formal proof does not lessen the plaintiff's burden to prove his case.

p. 2

Costs

No order as to costs - each party bearing their own costs in effect ('I would dismiss this appeal, but make no order as to 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.

There was no cause of action against the respondents and this was not a case to be saved by Order 1 r. 9 of the Civil Procedure Rules.
p. 1Cause of action against wrong defendants
The burden on the plaintiff to prove his case remains the same, though it is true that, where the matter is not defended, or, as here, validly defended that burden may become easier to discharge.
p. 2Burden of proof in formal proof
No court will believe that the noon is actually the sun however unchallenged that statement may be.
p. 2Uncontradicted but unreliable evidence
The learned judge was quite right to insist that the person who actually gave the order impugned be impleaded in the first place.
p. 2Proper parties to a suit impugning an administrative order
I would dismiss this appeal, but make no order as to costs.
p. 1Disposition

Issues in the judgment

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minor

The leading judgment (by Chesoni Ag JA) is not expressly labelled with a heading; it is identified as Chesoni's only by Hancox JA's reference to his draft judgment.

minor

Hancox JA states 'where the matter is not defended, or, as here, validly defended', which appears to be a typographical error (likely intending 'invalidly defended') given the context of the missing memorandum of appearance.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karugi & another v Kabiya & 3 others (Civil Appeal 80 of 1982)  (Civ) [1983] KECA 38 (KLR)", Case Analysis (1983). Court of Appeal Appeal (Nyeri High Court suit, O'Kubasu J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/38/eng@1983-11-16

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