Kirima v Ruhangi & 8 others; Kirima & 4 others (Interested Parties) (Civil Appeal 350 of 2019) [2024] KECA 1754 (KLR)
The bottom line
#Kenya's Court of Appeal set aside a High Court ruling because a company director was never served with hearing notices, reinforcing that no one can lose a case unheard.
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 appellant and/or her advocate was served with a mention notice for 29th January 2019 and a hearing notice for 30th January 2019
- 2.Whether the appellant's advocate (Mr. Mbobu) had issued instructions to Mr. Njengo to hold his brief on 29th and 30th January 2019
- 3.Whether the appellant's constitutional right to a fair hearing under Article 50 was violated by the trial court
Key legal issues
#Whether the appellant was served with notice of the proceedings of 29th and 30th January 2019
No service was effected; the trial court's own directions required notices to issue to all parties and no affidavit of service was filed.
The trial court's directions of 5th December 2018 expressly required that notices issue to all parties, with service to be effected by counsel for the 1st plaintiff. The record contained no affidavit of service under Order 5 rule 15 of the Civil Procedure Rules. The Court held Order 5 applies mutatis mutandis to service of applications and related documents, and adopted authorities that judgments against unserved parties are set aside ex debito justitiae.
Whether Mr. Njengo had instructions to hold brief for Mr. Mbobu for the appellant
No instructions were given; the burden lay on Mr. Njengo under section 109 of the Evidence Act and he failed to discharge it.
Mr. Njengo claimed an associate of Mr. Mbobu called him to hold his brief, but no evidence of such a call or instructions was led. Mr. Mbobu denied giving any instructions. Further, since no notice had been served on the appellant's advocate, he could not have known the hearing dates and thus could not have issued instructions to hold brief.
Whether the appellant's right to a fair hearing under Article 50 of the Constitution was violated
Yes. Proceeding with the hearing without ascertaining service on all parties perpetuated a violation of the appellant's Article 50 rights; she was condemned unheard and denied the opportunity to cross-examine the Registrar's representative.
The Court adopted the principle that the right to be heard is a valued right and that it would offend all notions of justice to prejudice a party's rights without affording an opportunity to be heard. The appellant was unaware of the proceedings of 29th and 30th January 2019 and was thereby denied the chance to cross-examine the Registrar of Companies' representative.
Legal principles established
#- A trial court that has issued directions as to service must satisfy itself that all parties have been served before proceeding with a hearing; failing that, it violates the party's right to a fair hearing.
- In the absence of an affidavit or return of service in the record, the only logical conclusion is that no service was effected.
- The burden of proving that counsel held brief with instructions lies on the counsel asserting that he had such instructions, under section 109 of the Evidence Act.
- Judgment entered against a party not served, and hence not heard, must be set aside ex debito justitiae as a matter of judicial duty.
Court orders
#- 1.The appeal is allowed
- 2.The ruling delivered by the trial court on 27th March 2019 and all consequential orders thereto are set aside
- 3.The matter before the trial court on the issue of the Company's list of members/shareholders be heard afresh
- 4.The appellant shall have costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi (Milimani Commercial Division)
- Civil Suit No. 529 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (first appeal from High Court ruling); no specific constitutional provision invoked for jurisdiction
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.
Accordingly, this appeal is merited and is hereby allowed. The ruling delivered by the trial court on 27th March 2019 and all the consequential orders thereto are hereby set aside. We direct that the matter before the trial court on the issue of the Company’s list of members/shareholders be heard afresh. The appellant shall have costs of this appeal.
By proceeding with the said hearing without having ascertained service on all parties, the trial court perpetuated a violation of the appellant’s rights to fair hearing. The appellant was condemned unheard and denied the opportunity to cross-examine the representative from the Registrar’s ofice.
The right to be heard is a valued right. It would ofiend all notions of justice if the rights of a party were to be prejudiced or afiected without the party being afiorded an opportunity to be heard
Service of summons accords the sued party the opportunity to be heard before any orders are issued against him/her. That is the essence of the rules of natural justice which all legal systems applaud.
If there is no proper or any service of summons to enter appearance to the suit, the resulting default judgment is an irregular judgment liable to be set aside by the court ex debito justitiae.
As this is a first appeal, we are enjoined to revisit the evidence that was before the trial court afresh, analyze it, evaluate it, and arrive at our own independent conclusion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirima v Ruhangi & 8 others; Kirima & 4 others (Interested Parties) (Civil Appeal 350 of 2019) [2024] KECA 1754 (KLR)", Case Analysis (2024). Civil Appeal (from ruling of Sewe, J, High Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1754/eng@2024-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.