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Court of AppealDismissedCivil Appeal No. 175 of 2014· [2017] KECA 91 (KLR)

Daniel Maingi Muchiri v Jubilee Insurance Co. Ltd

Court of Appeal of Kenya
15 December 2017
1,711 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed judges can extend interim orders and fix hearings on mention dates, dismissing a human-rights challenge against procedural orders.

What this practically means

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Executive summary

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This is the second in a series of appeals arising from HCCA No. 195 of 2014 before the High Court (Onyancha, J). It challenged orders made on 18th June 2014, by which the Judge fixed the inter partes hearing of a stay application for 23rd June 2014, granted leave to file a supplementary affidavit, directed the Deputy Registrar to obtain typed proceedings and the lower court ruling, and extended interim stay orders to that date. The appellant, proceeding on eleven grounds couched as a constitutional petition for violation of human rights, assailed the Judge for extending 'final' orders of 6th June 2014 on the pretext that they were interim, for failing to write a considered ruling, for extending orders without jurisdiction and despite non-compliance with conditions, and for fixing an inter partes hearing after issuing final orders. The Court of Appeal rejected the appeal. It held that the complaints arose from a misreading of the record: the 18th June 2014 appearance was a mention, and the Judge acted properly in fixing the matter for hearing rather than delivering a ruling, there being no jurisdiction to determine substantive matters on a mention date without the parties' consent. The court affirmed that the inherent jurisdiction of courts is not created by statute but merely preserved and augmented by provisions such as sections 1A, 1B and 3 of the Civil Procedure Act and sections 3, 3A and 3B of the Appellate Jurisdiction Act. The constitutional issues were rejected by applying the court's findings in companion appeals CA 138/2015 and 136/2015. The appeal was dismissed with costs. The decision binds lower courts on the cardinal rule that a mention date is not a hearing date, and on the existence and scope of the courts' inherent jurisdiction to make orders necessary for the ends of justice.

Key legal issues

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01

Whether the High Court had jurisdiction and discretionary power to extend the ex parte stay orders on 18th June 2014

Holding

The court had both the jurisdiction and the discretionary power; its inherent power, preserved and augmented by sections 1A, 1B and 3 of the Civil Procedure Act and sections 3, 3A and 3B of the Appellate Jurisdiction Act, allows orders necessary for the ends of justice.

Reasoning

The court held that inherent jurisdiction does not derive from legal provisions, which merely preserve it; sections 1A and 1B of the CPA and 3A and 3B of the AJA augment it. Relying on the Jacorossi Impresse Spa decision, it endorsed the view that courts may make orders necessary for the ends of justice because the law cannot anticipate all inconveniences. The Judge's extension of the stay and directions were therefore a proper exercise of discretion.

p. 3
02

Whether the Judge was obliged to write a considered ruling when extending the orders on a mention date

Holding

No; a court has no jurisdiction to hear submissions and issue a reasoned ruling on a mention date, and it was proper to fix the matter for inter partes hearing instead.

Reasoning

Adopting the reasoning in Republic vs. Anti-Counterfeit Agency Ex-Parte Surgippharm Limited, which distilled Court of Appeal authority including Central Bank of Kenya vs. Uhuru Highway Development Ltd, the court held that matters fixed for mention cannot be heard or substantively determined without the parties' consent. Fixing the application for hearing inter partes on 23rd June 2014 was a just order giving parties the opportunity to agitate their cases.

p. 4
03

Whether the constitutional and human-rights complaints against the impugned orders had merit

Holding

The constitutional issues were rejected, the court applying its findings in CA 138/2015 and 136/2015.

Reasoning

The court noted it had already dealt with the constitutional issues in two companion appeals and simply applied those findings. It also deprecated counsel's assertion that rules of procedure are subservient to the Constitution and that he could vindicate human rights without following any rules, terming such a stance a recipe for disorder and uncertainty in law and procedure.

p. 2

Legal principles established

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  • The inherent jurisdiction of courts is not created by statute; statutory provisions merely preserve and augment it, empowering courts to make orders necessary for the ends of justice.
  • A court hearing a mention has no jurisdiction to hear submissions and issue a reasoned ruling on that date; substantive matters may not be determined on a mention date unless the parties consent.

Court orders

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  1. 1.The appeal be and is hereby dismissed with costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.A. No. 195 of 2014
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act (first appellate-tier appeal against interlocutory orders of the High Court)

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, "Daniel Maingi Muchiri v Jubilee Insurance Co. Ltd", Case Analysis (2017). Civil Appeal No. 175 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/91/eng@2017-12-15

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