Association of Member Episcopal Conference In Eastern Africa (AMECEA) v Alfred Romani (T/A Romani Architects) & 3 others [2002] KECA 185 (KLR)
The bottom line
#A flawed court order stays valid until someone formally challenges it — and you must raise every argument in your application, not save some for later.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' leave to appeal was 'irregularly' obtained in ex parte proceedings such that the appeal should be struck out under rule 80
- 2.Whether the notice of motion could sustain an argument that the order granting leave was a nullity
- 3.The distinction between orders that are nullities and orders affected by a mere irregularity
Key legal issues
#Whether leave to appeal obtained ex parte was irregularly obtained so as to justify striking out the appeal
No. The leave order was at most an irregularity; it stands until avoided, and no appeal or application to set it aside had been made.
The court drew on the Privy Council's Macfoy v United Africa Co distinction between void and voidable acts. No rule defines the line between nullities and irregularities, and no decisive test exists. Since the respondents had not appealed the leave decision nor sought to set it aside, the order remained good and could not ground striking out the appeal.
Whether the notice of motion could sustain an argument that the leave order was a nullity
No. Nullity was not pleaded in the notice of motion, which relied only on the word 'irregularly', so the argument could not be raised.
The court held that grounds of an application must be stated. The draftsman's use of 'irregularly' showed the only matter in contemplation was irregularity; the nullity argument, though more substantial, was not stated, relied upon or canvassed, and the notice could not be construed to admit it.
Legal principles established
#- An order obtained in breach of procedure that amounts only to an irregularity is voidable, not void; it remains valid until set aside by a court, and a court has a discretion whether to set it aside.
- An act that is a nullity is incurably bad and requires no order to set it aside; every proceeding founded on it is equally bad.
- The grounds on which an application is based must be stated in the notice of motion; a party cannot argue a ground (such as nullity) not pleaded in the application.
Court orders
#- 1.The notice of motion dated 9 October 2001 fails and is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- H.C.C.C. No. 63 of 2000, Milimani Commercial Courts, Nairobi
- Jurisdiction invoked
- Rule 80 of the Court of Appeal Rules (application to strike out Civil Appeal No. 22 of 2001)
Relief refused
#Striking out of Civil Appeal No. 22 of 2001 under rule 80 of the Court of Appeal Rules
The leave to appeal granted by Khamoni, J was at most an irregularity, not a nullity; it remains good until avoided, and no appeal or application to set it aside was made
Costs
The notice of motion dated 9 October 2001 is dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside.
But if an act is only voidable, then it is not automatically void. It is only an irregularity which maybe waived. It is not to be avoided unless something is done to avoid it.
In this case, no appeal has been preferred from the decision of Khamoni, J. granting leave. Nor has any application been made to set it aside. Since it is only an irregularity, it is good until avoided.
Accordingly and, for the reasons above stated, the notice of motion dated 9 October 2000 fails and is dismissed with costs.
Issues in the judgment
#The notice of motion is described as dated 9 October 2001 at the start of the ruling, but the final order refers to a notice of motion dated 9 October 2000.
The ruling's opening describes the decision appealed from as given on 19 December 2001, while the coram note and the appeal record describe it as given on 19 December 2000.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dado v Godhana & 2 others (Election Petition Appeal E002 of 2023) [2023] KECA 869 (KLR)[2023] KECA 869 (KLR)7 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "Association of Member Episcopal Conference In Eastern Africa (AMECEA) v Alfred Romani (T/A Romani Architects) & 3 others [2002] KECA 185 (KLR)", Case Analysis (2002). Civil Appeal (Application) No. 22 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/185/eng@2002-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.