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
#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
- 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.
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.