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Court of AppealAllowedCivil Appeal (from ruling of Sewe, J, High Court, Nairobi)· [2024] KECA 1754 (KLR)

Teresia Wairimu Kirima v John Peter Kamau Ruhangi & 8 others

Court of Appeal of Kenya
6 December 2024
5,139 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal to the Court of Appeal against a ruling of the High Court (Sewe, J) delivered on 27th March 2019 in the long-running dispute over the affairs of Kenda Investments Limited. The impugned ruling ordered that the Company's Special General Meeting be held within 45 days and that the members' list used at that meeting be the list annexed to the affidavit of Wanjau rather than the 'Duncan Gateru List'. The ruling followed testimony on 29th January 2019 by a representative of the Registrar of Companies, who stated that the Company's file could not be traced at the Registry. The appellant, a co-plaintiff, asserted she was neither served nor represented on 29th and 30th January 2019, and that counsel Mr. Njengo held brief for her advocate Mr. Mbobu without instructions. Before the Court of Appeal, counsel relied on authorities on fair hearing, service, property rights and orders granted without being sought. The Court framed two issues: whether the appellant or her advocate was served with the mention and hearing notices, and whether Mr. Mbobu had instructed Mr. Njengo to hold his brief. Finding no affidavit of service on the record despite express directions that notices issue to all parties, and holding that Mr. Njengo failed to discharge the burden under section 109 of the Evidence Act of proving instructions to hold brief, the Court concluded the appellant's Article 50 right to a fair hearing was violated. The appeal was allowed, the ruling of 27th March 2019 and consequential orders were set aside, the matter on the Company's members' list was remitted for a fresh hearing, and the appellant was awarded the costs of the appeal.

Key legal issues

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01

Whether the appellant was served with notice of the proceedings of 29th and 30th January 2019

Holding

No service was effected; the trial court's own directions required notices to issue to all parties and no affidavit of service was filed.

Reasoning

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.

p. 7
02

Whether Mr. Njengo had instructions to hold brief for Mr. Mbobu for the appellant

Holding

No instructions were given; the burden lay on Mr. Njengo under section 109 of the Evidence Act and he failed to discharge it.

Reasoning

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.

p. 8
03

Whether the appellant's right to a fair hearing under Article 50 of the Constitution was violated

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The appeal is allowed
  2. 2.The ruling delivered by the trial court on 27th March 2019 and all consequential orders thereto are set aside
  3. 3.The matter before the trial court on the issue of the Company's list of members/shareholders be heard afresh
  4. 4.The appellant shall have costs of this appeal
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

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, "Teresia Wairimu Kirima v John Peter Kamau Ruhangi & 8 others", 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.