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Court of AppealDismissedCivil Appeal No. 137 of 2016

Daniel Maingi Muchiri v Jubilee Insurance Company Limited [2017] KECA 101 (KLR)

Court of Appeal
15 December 2017
978 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 it cannot hear constitutional rights claims raised for the first time on appeal; those must go to the High Court first.

What this practically means

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Executive summary

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This is one of five related appeals by Daniel Maingi Muchiri against Jubilee Insurance Company Limited, heard back to back and decided by a single judgment of the Court (Waki, Ouko and M'inoti, JJ.A). The appeal challenged directions given by Onyancha, J. of the High Court on 12th March 2015 in HCCA No. 195 of 2015, by which the Judge admitted the appeal to hearing, declared the court had jurisdiction, and extended interim stay of execution orders until disposal of the appeal. The appellant contended, as in the related appeals, that these directions subverted various constitutional provisions, including by granting directions before disposing of pending applications, extending stay orders without an inter partes hearing, failing to disqualify himself, and permitting the firm of Majanja Luseno & Advocates to appear. The Court of Appeal rejected the appellant's attempt to raise constitutional enforcement for the first time on appeal, reiterating that its jurisdiction is purely appellate under Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act, and that enforcement of constitutional rights lies with the High Court. It followed its earlier decision in Peter Odiwour Ngoge & Another v Jubilee Insurance Co. Ltd & Another. The Court held that the directions were properly issued under Order 42 Rule 13 of the Civil Procedure Rules, that the extension of stay was a judicial exercise of discretion as the respondent had satisfied the deposit condition, and that the complaint about the advocate's firm was mere conjecture. The appeal was dismissed with costs on 15th December 2017.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal can entertain a petition for enforcement of constitutional rights at an appeal stage without such reliefs first being sought in the High Court
  2. 2.Whether the learned Judge contravened constitutional provisions by giving directions before disposing of pending applications
  3. 3.Whether the extension of interim stay of execution orders without an inter partes hearing violated the Constitution
  4. 4.Whether the Judge should have disqualified himself from hearing the case
  5. 5.Whether permitting the firm of Majanja Luseno & Advocates to conduct the matter breached the Constitution
  6. 6.Whether the existence of concurrent proceedings before the High Court and the subordinate court violated the Constitution

Key legal issues

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01

Whether the Court of Appeal has jurisdiction to enforce constitutional rights at an appeal stage

Holding

It does not; the jurisdiction to enforce constitutional rights is vested in the High Court, and the Court of Appeal's jurisdiction is purely appellate.

Reasoning

Relying on Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act, the Court reaffirmed its earlier decision in Peter Odiwour Ngoge & Another v Jubilee Insurance Co. Ltd & Another, holding that a party cannot seek constitutional enforcement orders for the first time on appeal without having applied for those reliefs in the High Court.

p. 2
02

Whether the Judge's directions and extension of stay orders violated the Constitution

Holding

No; the directions were issued in accordance with Order 42 Rule 13 of the Civil Procedure Rules, and the extension of the stay orders was a judicial exercise of discretion since the respondent had met the conditions for stay.

Reasoning

The stay orders had been granted on condition the respondent deposits the decretal sum, which it did. The appellant never complained of or applied to set aside the successive extensions, and the Judge was therefore entitled to extend the same orders while giving case management directions under Order 42 Rule 13.

p. 2
03

Whether permitting the firm of Majanja Luseno & Advocates to conduct the matter breached the Constitution

Holding

No; the complaint was far-fetched and mere conjecture.

Reasoning

The appellant contended that a firm bearing the name of a High Court judge should not have been permitted to appear. The Court, following its reasoning in the related appeals and in Peter Odiwour Ngoge, rejected the argument as conjectural and lacking substance.

p. 2

Legal principles established

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  • The Court of Appeal exercises purely appellate jurisdiction and cannot entertain original petitions for enforcement of constitutional rights at appeal stage.
  • A trial judge may extend interim stay orders that have been regularly maintained and whose conditions have been satisfied, in exercise of judicial discretion, without an inter partes hearing.

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

William Ouko
W. OukoJA
Currently serving
majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Nairobi
HCCA No. 195 of 2015
Jurisdiction invoked
Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act
Consolidated with
Four other related appeals heard back to back on 3rd October, 2017, including Civil Appeal No. 136 of 2016

Relief refused

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Enforcement of constitutional rights and reliefs at appeal stage

Jurisdiction to enforce constitutional rights lies with the High Court, not the Court of Appeal

p. 2

Setting aside the directions given on 12th March 2015

The Judge gave directions in accordance with Order 42 Rule 13 of the Civil Procedure Rules

p. 2

Setting aside the extension of interim stay of execution orders

The Judge acted judicially in exercise of his discretion, the respondent having met the conditions for the stay orders

p. 3

Complaint about the firm of Majanja Luseno & Advocates conducting the matter

The complaint was far-fetched and a mere conjecture

p. 2

Costs

Appeal dismissed with costs to the respondent

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.

we shall not tire to restate that the jurisdiction of this Court is purely appellate. It does not exercise original jurisdiction like the High Court.
p. 2Appellate jurisdiction of the Court of Appeal
We reject all the 8 grounds upon which this appeal is premised for seeking from this Court orders for the enforcement of constitutional rights at an appeal stage without first applying for those reliefs in the High Court.
p. 2Constitutional enforcement at appeal stage
For these reasons we find no substance in this appeal. It is accordingly dismissed with costs.
p. 3Final orders and disposition

Issues in the judgment

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minor

The judgment states the appellant's counsel was absent on 12th March 2015 in one passage, but elsewhere the appellant's grounds refer to non-attendance on 12th March 2014, an apparent date discrepancy in the submissions as recorded.

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 Company Limited [2017] KECA 101 (KLR)", Case Analysis (2017). Civil Appeal No. 137 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/101/eng@2017-12-15

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