Charles (Suing as the Legal Representative of Abraham Kailemia Ikigu (Deceased) v Kirimania (Sued as the Legal Representative of the Estate of the Late Doris Kinanu Kirimania (Deceased)) (Civil Appeal 154 of 2019 & 86 of 2020 (Consolidated)) [2025] KECA 950 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot use a constitutional petition to dodge an appeal or stall a judgment — it dismissed both appeals with costs.
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 High Court erred in finding that the constitutional petition was an abuse of the court process rather than a legitimate vehicle for vindicating constitutional rights
- 2.Whether the appellant's remedy lay in the appellate process (including leave to appeal out of time and to adduce fresh evidence) rather than in a constitutional petition
- 3.Whether the appellant's constitutional rights to a fair hearing, dignity and access to justice were violated by the ex parte judgment, attachment and committal to civil jail
- 4.Whether the High Court properly declined to interfere with the trial magistrate's discretionary refusal to set aside the ex parte judgment of 20th January 2012
- 5.Whether the second appeal, confined to points of law, disclosed any basis for interfering with the first appellate court's decision
Key legal issues
#Whether a constitutional petition may substitute for an appeal or an application to set aside judgment
No. The petition was a backdoor attempt to re-litigate and circumvent the appellate route, and constituted gross abuse of court process.
The appellant conceded the trial court's determination on the evidence but sought to introduce fresh evidence via petition because he feared laches would defeat an application for extension of time. The court held that constitutional remedies are meant to aid legitimate agitation of rights, not to circumvent legal process or curtail judgment-holders' legitimate expectation of execution. His conduct - objection proceedings, multiple appeals, then a petition, then a set-aside application - evidenced a litigant keeping courts busy to stall a decree.
Whether the discretion refusing to set aside the ex parte judgment was properly exercised
Yes. The 8-year delay and the appellant's lack of candour justified refusal, and the first appellate court properly upheld that discretion.
The magistrate was exercising discretion; under the United India Insurance principles the High Court could interfere only on the established grounds, none of which were met. The appellant had been appointed administrator of both estates, so the suit against him as the driver's personal representative was competent, and his claim that the owner was not sued failed because he himself represented the owner's estate. The threshold for upsetting the first appellate court's confirmation of discretion on a second appeal is even more stringent and was not met.
Scope of a second appeal
Confined to points of law under section 72 of the Civil Procedure Act; findings of fact by the courts below bind the second appellate court.
Relying on Kenya Breweries Ltd v Godfrey Odoyo and Stephen Muriungi v Republic, the court reiterated that where the right of appeal is confined to questions of law, the appellate court must accept the findings of fact of the lower courts and not convert findings of fact into issues of law, interfering only where no reasonable tribunal could have reached the conclusion on the evidence.
Whether the appellant's constitutional rights were violated by the ex parte proceedings and execution
No. The rights claims were a device to repackage a civil dispute, and the constitutional question would not be entertained where other remedies existed.
Relying on Minister of Home Affairs v Bickle, the court held that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be involved. The appellant had been heard (he filed a defence), his remedy for non-attendance was to seek setting aside promptly, and the fair-hearing, dignity and access-to-justice claims were raised only after years of inaction as part of a strategy to frustrate execution of a lawful decree.
Legal principles established
#- A constitutional petition cannot be used to obtain relief that properly lies in an appeal; doing so, particularly out of apprehension that extension of time may be refused, is an abuse of court process.
- Where a remedy is available under other legislation or on another basis, courts will normally decline to determine whether there has been a breach of the Bill of Rights.
- On a second appeal under section 72 of the Civil Procedure Act, the Court of Appeal is confined to matters of law and will not disturb concurrent findings of fact absent perversity or misdirection.
- An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take relevant ones into account, or the decision is plainly wrong.
- Multiplic deity and successive proceedings on the same subject matter between the same parties constitute abuse of judicial process which courts have inherent power to stop.
Court orders
#- 1.Dismissal of Civil Appeal No. 154 of 2019
- 2.Dismissal of Civil Appeal No. 86 of 2019
- 3.Costs of both appeals to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- Constitutional Petition No. 16 of 2018 and Civil Appeal No. 7 of 2020 (ex HCCC No. 74 of 2018)
- Jurisdiction invoked
- First appeal and second appeal under the Appellate Jurisdiction Act and section 72 of the Civil Procedure Act (limitation of second appeals to points of law); Article 164 of the Constitution not expressly cited in the judgment.
- Consolidated with
- Civil Appeal No. 86 of 2019
Relief refused
#Setting aside of the High Court decisions dismissing the petition and the application to set aside the ex parte judgment
The petition was an abuse of process; the appellant's remedy lay in the appellate route, and the threshold for interfering with the exercise of discretion on a second appeal was not met
Leave to adduce fresh evidence through a constitutional petition
Fresh evidence is a matter for the appellate process, not a constitutional petition; the appellant bypassed that route out of apprehension about seeking extension of time
Costs
Both appeals dismissed with costs to the respondent.
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.
A party who files a constitutional petition in order to achieve a relief that he could have sought in an appeal, but for his own lethargy, can only be said to be abusing the court process.
if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.
We find no merit in both appeals and, following the beaten path, dismiss them with costs.
Pursuant to section 72 of the Civil Procedure Act, our mandate is limited to points of law.
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;
It would seem that the appellant is playing musical chairs with both the courts and the respondent with the hope that with the passage of time, the decree will be rendered stale.
Issues in the judgment
#Internal inconsistency in the appeal number of the second appeal: the judgment describes it as Civil Appeal No. 86 of 2019 in paragraphs 11 and 14 but as Civil Appeal No. 86 of 2020 in later paragraphs.
Anachronistic case number: an appeal filed after events of 2011-2019 is referred to as Meru High Court Civil Appeal No. 234 of 2023, and the same appeal is discussed inconsistently with HCCA No. 74 of 2018.
Inconsistent reference to the constitutional petition: the judgment identifies it as Meru Constitutional Petition No. 16 of 2018 but later refers to Petition No. 154 of 2019, which is the number of the Court of Appeal civil appeal.
Paragraph numbering is defective: after paragraph 37 the judgment abruptly reverts to a paragraph numbered 14 (the block quoting Kenya Breweries Ltd v Godfrey Odoyo) before resuming at paragraph 38.
The quoted passage from Minister of Home Affairs v Bickle is attributed first to the Constitutional Court of South Africa but the quoted holding is by Georges, CJ, and the citation format is irregular.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles (Suing as the Legal Representative of Abraham Kailemia Ikigu (Deceased) v Kirimania (Sued as the Legal Representative of the Estate of the Late Doris Kinanu Kirimania (Deceased)) (Civil Appeal 154 of 2019 & 86 of 2020 (Consolidated)) [2025] KECA 950 (KLR)", Case Analysis (2025). Civil Appeal No. 154 of 2019 (consolidated with Civil Appeal No. 86 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/950/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.