Kenneth K. Mwangi v City County of Nairobi & 2 others [2017] KECA 434 (KLR)
The bottom line
#The Court of Appeal dismissed a landowner's late challenge to a rates judgment, confirming courts rarely undo sales already transferred to innocent third parties.
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 two courts below properly exercised their discretion in refusing to set aside the ex parte judgment
- 2.Whether the High Court was right to strike out the undated affidavit in support of the application to set aside the ex parte judgment
- 3.(Raised for the first time on appeal) Whether the Resident Magistrate's Court had jurisdiction to issue a vesting order affecting title to land
- 4.(Raised for the first time on appeal) Whether Article 159 of the Constitution required the High Court to decide on substance rather than technicality
Key legal issues
#Exercise of discretion in setting aside an ex parte judgment
The two courts below properly exercised their discretion in refusing to set aside the ex parte judgment, having considered that the decree had been executed, the property transferred to a third party not joined to the proceedings, the risk of making orders in vain, prejudice, and the interest of justice.
Setting aside a default judgment is discretionary. Applying the principles in United India Insurance, the appellate court will not interfere absent misdirection in law, misapprehension of facts, consideration of irrelevant matters, failure to consider relevant matters, or a plainly wrong decision. Here the courts below relied on relevant considerations: execution of the decree, transfer to a third party who was not a party, orders in vain, and prejudice. Had the appellant joined the purchaser, different considerations might have applied.
Undated affidavit and striking out at first appellate stage
The High Court was entitled to entertain the competency of the undated affidavit on first appeal (a rehearing on matters of law), and the mandatory dating requirement under section 5 of the Oaths and Statutory Declarations Act rendered the affidavit incompetent; without it the application was left bare.
A first appeal is a rehearing in which the court may re-examine the material before the Magistrate's Court. The issue was one of law. The affidavit's dating requirement under section 5 is mandatory ('shall'). Although the decision pre-dated the current Constitution and the overriding objective, and a different conclusion might be reached today, the judge cannot be faulted for applying the law as it then stood.
New issues raised for the first time on appeal
The Court declined to entertain the arguments on the Resident Magistrate's Court's jurisdiction to issue a vesting order and on Article 159 of the Constitution, raised for the first time on appeal without leave.
A litigant is precluded from taking a completely new point of law for the first time on appeal, absent illegality or want of jurisdiction in the proceedings below. The issues were not among the filed grounds of appeal and no leave was sought. Further, the proceedings below pre-dated the current Constitution, so Article 159 did not assist the appellant.
Mode of service of summons
Personal service is not the only effective mode of service; service may be effected on an agent or an adult member of the defendant's family. The appellant's failure to rebut the process server's affidavit of service or seek cross-examination weighed against him.
The court endorsed the High Court's statement of the law on service. Even if the courts below had addressed service fully, the appellant, who knew the person served as his tenant, neither swore a countering affidavit nor requested the process server for cross-examination. The point did not avail him on a second appeal confined to law.
Legal principles established
#- In a second appeal, the Court of Appeal is confined to matters of law only.
- An appellate court will not interfere with the exercise of discretion by a lower court unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong.
- A litigant is generally precluded from taking a completely new point of law for the first time on appeal.
- Service of summons need not be personal to be effective; service may be effected on an agent or an adult member of the defendant's family.
- An undated affidavit offends section 5 of the Oaths and Statutory Declarations Act, whose mandatory dating requirement is conveyed by the word 'shall', and a defective affidavit, if struck out, leaves the application bare.
Court orders
#- 1.Dismissal of the appeal
- 2.Costs of the appeal to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.A. No. 232 of 1996
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the applicable appellate framework, confined to matters of law only
Relief refused
#Setting aside of the ex parte judgment, the vesting order and reinstatement of the appellant's title
The exercise of discretion by the two courts below was sound: the decree had been executed, the property sold and transferred to third parties, and orders made would be in vain; further, new grounds raised for the first time on appeal were not entertained
Leave to argue new issues (jurisdiction of the Resident Magistrate's Court and Article 159) for the first time on appeal
No leave sought or obtained and the issues were not among the grounds of appeal; proceedings pre-dated the current Constitution
Costs
The appeal was 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.
On the whole, we are satisfied that this Appeal is bereft of merit and the same is for dismissal with costs. It is so ordered.
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts;
In general a litigant is precluded from taking a completely new point of law for the first time on appeal.
This court in a second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
just because the service was not ‘personal’ did not necessarily render the same ineffective in law
There is no doubt at all that the use of the word “shall” connotes the mandatory nature of the requirement.
Issues in the judgment
#The judgment records contradictory dates for the sale of the suit property, stating it was sold and transferred on 25th December 1995 in one passage and 15th December 1995 in another.
The appellant's written submissions describe Nyayo Bus Services as a [1969] case while the citation given is C.A. No. 172 of 1998; the judgment reproduces this inconsistency without resolving it.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth K. Mwangi v City County of Nairobi & 2 others [2017] KECA 434 (KLR)", Case Analysis (2017). Civil Appeal No. 228 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/434/eng@2017-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.