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Court of AppealDismissedCivil Appeal No. 90 of 2006· [2013] KECA 177 (KLR)

City Council of Nairobi v Barclays Bank of Kenya Limited

Court of Appeal
18 October 2013
RNR. N. NambuyeWKW. KaranjaJMJ. W. Mwera
1,616 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that a council cannot prosecute a bank for failing to paint its premises because no written law actually makes that a criminal offence.

What this practically means

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Executive summary

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The City Council of Nairobi appealed against a High Court decision (Wendoh J, 17 March 2006) granting Barclays Bank of Kenya judicial review orders under Order 53 Rule 3(1) of the Civil Procedure Rules: certiorari quashing the charge sheet and proceedings in Criminal Case No. M1509(A)/05, prohibition against further criminal proceedings over the failure to paint and repair the bank's Market Branch premises, and mandamus compelling refund of Sh.90,000 cash bail. The Council argued, first, that failure to paint the premises constituted a nuisance offence under sections 115-120 of the Public Health Act; and secondly, that the judge's own observation that the magistrate's court should have been joined meant the motion was a nullity. Condensed to two grounds, the appeal failed on both. The Court of Appeal, re-evaluating the evidence, held that no section of the Public Health Act, including section 118, defines nuisance or criminalises failure to repaint a building, and there was no evidence that such failure was injurious or dangerous to health; since an offence must be defined by law with all its ingredients for a valid charge, the charge sheet was properly quashed. On the second ground, the Court accepted that Order 53 Rule 3(2) required service of the notice of motion on the magistrate's court, but held the omission caused no prejudice and did not render the proceedings a nullity. The appeal was dismissed in its entirety with costs to the respondent. This judgment binds subordinate courts on the principle of legality in charging statutory offences and on the effect of non-service under Order 53 Rule 3(2).

Key legal issues

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01

Whether failure to paint/repair premises constitutes the statutory nuisance offence under the Public Health Act

Holding

It does not; sections 115-120, and specifically section 118, do not define nuisance or make failure to repaint a building an offence, and no evidence showed such failure injurious to health.

Reasoning

The Court perused sections 115 to 120 of the Public Health Act as urged by counsel for the Council and found no definition of nuisance nor any provision criminalising failure to repaint a building. No medical officer's evidence established that the alleged failure was injurious or dangerous to health. Since an offence must be defined by law with all its ingredients, the charge sheet did not disclose an offence and certiorari was properly granted.

p. 3
02

Effect of non-service of the judicial review notice of motion on the magistrate's court

Holding

Order 53 Rule 3(2) required service, but the omission caused no prejudice and did not render the proceedings a nullity because the underlying charge sheet was itself defective and quashed.

Reasoning

The Court accepted that Order 53 Rule 3(2) applied since the certiorari order sought to quash proceedings before the magistrate's court, which ought to have been served. However, the substance of the matter was that the charge sheet was found defective and quashed. The procedural omission occasioned no invalidity or prejudice, so the High Court's refusal to nullify the motion was upheld.

p. 3

Legal principles established

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  • An offence must be defined by law setting out all its ingredients before a valid charge can be laid; a charge founded on conduct not defined as an offence is fatally defective.
  • Where the object of a judicial review notice of motion is to quash proceedings in a subordinate court, it must be served on the presiding officer of that court under Order 53 Rule 3(2), but non-service that causes no prejudice does not render the proceedings a nullity.

Court orders

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  1. 1.Appeal dismissed in its entirety as lacking any merit
  2. 2.Appellant to pay costs to the respondent
On appeal from
High Court of Kenya at Nairobi
Misc. Civil Application No. 1261 of 2005
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Appellate Jurisdiction Act / Constitution; not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "City Council of Nairobi v Barclays Bank of Kenya Limited", Case Analysis (2013). Civil Appeal No. 90 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/177/eng@2013-10-18

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