On Right to fair hearing & Proof of service (email): The Case of BOD County Referral Hospital Kitale & Another v DN (Civil Appeal E043 of 2023)

Legal Brief and Analysis of the Case

Case Title: BOD County Referral Hospital Kitale & Another v DN (Suing through her next friend & Grandmother SK)
Court: High Court at Kitale
Case Number: Civil Appeal E043 of 2023
Judgment Date: 30 April 2025
Judge: Hon. Justice RE Ougo

 

I. Legal Brief

1. Facts

• DN, a minor, through her grandmother, sued the County Referral Hospital Kitale and the County Government of Trans Nzoia (Appellants), alleging medical negligence that led to the amputation of her left arm.
• The suit was heard ex parte after the Appellants failed to attend the hearing.
• A judgment was entered on May 29, 2023 in favor of the minor.
• The Appellants claimed they were not properly served with the hearing notice and moved the trial court to set aside the ex parte judgment.
• The trial court dismissed their application, prompting this appeal.

 

2. Issues for Determination

1.         Whether the trial court erred in holding that the Appellants were properly served with a hearing notice.

2.         Whether denying the application to set aside the ex parte judgment violated the Appellants' right to a fair hearing.

3.         Whether the requirements of Order 5 Rule 22B of the Civil Procedure Rules (CPR) were met regarding electronic service.

 

Detailed Analysis of the Issues for Determination in the case:

Issue 1: Whether the Appellants were properly served with a hearing notice

Legal Context

• Order 5 Rule 22B of the Civil Procedure Rules, 2010 permits service via electronic means but requires:
• That the service be sent to the designated email address.
• That the sender provides proof of delivery or access (e.g. delivery/read receipts).

Court's Analysis

• The Respondent claimed the Appellants were served via email on June 14, 2021.
• However, there was no delivery receipt, no read confirmation, and no affidavit affirming actual receipt by the Appellants.
• The court held that mere dispatch of an email is not sufficient; receipt must be proven.

Legal Significance

• The court reinforced that service is only complete upon confirmation of delivery, not just upon sending.
• This interpretation protects the due process rights of litigants and emphasizes procedural integrity.

Conclusion

• The Appellants were not properly served, making the proceedings on May 22, 2023, and the ex parte judgment entered thereafter, procedurally invalid.

 

Issue 2: Whether the trial court erred in denying the Appellants’ application to set aside the ex parte judgment

Legal Principles

• Courts have discretion to set aside ex parte judgments under Order 10 Rule 11 and Order 12 Rule 7 of the CPR.
• However, this discretion must be exercised judiciously, with a focus on enabling parties to be heard on merit, especially when:
• The default was not willful.
• The applicant has a defense with merit.
• There was procedural irregularity in service or hearing.

Court’s Reasoning

• The Appellants moved promptly after learning about the ex parte judgment.
• They demonstrated that their absence was not deliberate, but due to lack of notice.
• Denying them a hearing violated Article 50(1) of the Constitution (right to fair hearing).

Conclusion

• The trial court misdirected itself by dismissing the application to set aside, ignoring the fundamental right to be heard and the flawed service process.

 

Issue 3: Whether the requirements of Order 5 Rule 22B (on service via email) were complied with

Statutory Framework

• Order 5 Rule 22B allows for service via email only where:
• There is agreement or direction for electronic service.
• Proper email address is used.
• Proof of service includes evidence of transmission and delivery.

Findings

• The Respondent failed to provide proof of delivery of the hearing notice.
• A screenshot of the sent email without a delivery or read receipt was insufficient.
• The court noted that this breached the rule’s requirements and compromised fairness.

Broader Implications

• This reinforces that even with modern tools (e.g., email), procedural safeguards remain vital.
• The case sets a precedent that e-service must be verifiable and reliable.

 

Overall Legal Analysis

Issue	Court’s Determination	Implication
Proper service	Not established	Judgment invalid; right to hearing denied
Refusal to set aside ex parte judgment	Erroneous	Violated Article 50(1) and procedural justice
Compliance with Order 5 Rule 22B	Not met	Service defective; judgment set aside

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✅ Final Legal Position:

• The appellate court found that each issue was wrongly handled by the trial court.
• The Appellants were denied due process due to flawed service and a rigid application of procedural law.
• The judgment was set aside, and the case was remitted for a fresh hearing on merit.

3. Applicable Law

• Order 5 Rule 22B, Civil Procedure Rules (2010): Governs service by electronic means. Requires proof of delivery, not just proof of sending.
• Article 50(1), Constitution of Kenya (2010): Guarantees the right to a fair hearing.
• Article 159(2)(d): Emphasizes substantive justice over procedural technicalities.

 

4. Court’s Holding

• The email said to contain the hearing notice lacked a delivery or read receipt.
• The court found no evidence that the hearing notice was actually received.
• Failure to give proper notice violated the right to be heard under Article 50(1).
• The ex parte judgment and the ruling refusing to set it aside were set aside.
• Matter remitted back for hearing on merit.

 

5. Disposition

• Appeal allowed.
• Ex parte judgment dated 29 May 2023 and trial court ruling of 17 July 2023 set aside.
• Each party to bear their own costs.

 

II. Legal Analysis

A. Service by Email under Kenyan Law

• The CPR allows for electronic service, but it must be effective—that is, the recipient must actually receive the notice.
• This case sets a clear precedent that merely “sending” an email does not equate to proper service unless delivery or read receipts are provided.
• The failure to comply with this requirement fatally undermined the integrity of the process.

 

B. Right to Fair Hearing (Article 50)

• Procedural fairness is a cornerstone of justice.
• The court emphasized that denying a party the opportunity to be heard, even if due to an oversight in procedural compliance, results in substantial injustice.
• The trial court, in denying the application to set aside the judgment, effectively penalized the Appellants despite an apparent procedural failure by the Respondent.

 

C. Balancing Justice and Procedure

• The appellate court rightly invoked Article 159(2)(d) to prioritize substantive justice.
• There was no willful disregard or delay by the Appellants—just a breakdown in communication/service.
• Allowing the judgment to stand would have been disproportionate and unjust, especially given the serious nature of the claim (medical negligence).

 

III. Conclusion

This decision reinforces procedural fairness in civil litigation. It illustrates that:

• Proper service is not a mere formality—it is a constitutional imperative.
• Courts must be vigilant in protecting litigants’ rights to participate in proceedings, especially in sensitive matters like those involving minors and allegations of medical negligence.
• Email service must include verifiable proof of receipt to meet legal standards.

 

✅ Key Takeaways

 

Legal Principle	Application in Case
Right to fair hearing	Violated due to lack of proper service
Proof of service (email)	Must include delivery or read receipt
Discretion to set aside	Must be exercised to prevent injustice

 

 

On strict adherence to due process in executive terminations: The Case of Pamba v Kenya Hospital Association for & on behalf of the Nairobi Hospital & another (Cause E614 of 2020) [2025] KEELRC 1776

Dr. Allan Pamba v Kenya Hospital Association for & on behalf of the Nairobi Hospital & Another [2025] KEELRC 1776 (KLR)
Judge: Hon. Justice Nzioki wa Makau
Case Number: Cause No. E614 of 2020

Parties to the Suit:

• Claimant: Dr. Allan Pamba (former CEO of Nairobi Hospital)
• Respondents:

1.      Kenya Hospital Association (owner and operator of Nairobi Hospital)

2.      Dr. Irungu Ndirangu (Chairperson of the Board, Nairobi Hospital)

Summary Background:

• Dr. Pamba was appointed CEO of Nairobi Hospital in March 2020 on a 3-year contract.
• He was suspended and eventually dismissed in October 2020.
• He claimed the dismissal was retaliatory, stemming from his opposition to irregularities in procurement and governance.
• He challenged the termination as unlawful, procedurally unfair, and a breach of contract.
•  

Brief Background:

This case arose from the termination of Dr. Allan Pamba’s contract as CEO of Nairobi Hospital by the Kenya Hospital Association. The Claimant was employed by the 1st Respondent on a three-year contract with an initial probation period of six months. The contract was to be confirmed after successful completion of the probation period.

However, in case of unsatisfactory performance, the Claimant was to be placed on enhanced performance probation period for an additional three months. The contract was terminated at the end of the six-month probation period when the Claimant allegedly had unsatisfactory performance and refused to participate in a three-month performance enhancement plan.

The Claimant alleged that the termination contract was unlawful and was instigated by the Respondent due to political reasons. He claimed that he performed well during the probation period, and his contract of employment was therefore automatically confirmed by operation of the law following the end of the six-month probation period.

He also alleged that the final evaluation of his probation that determined his alleged underperformance by the second Respondent (Dr. Irungu Ndirangu—the Board Chair) was done contrary to the hospital’s HR policy and the employment laws.

He also claimed that the special board meeting that approved his dismissal was convened in contravention of the HR policy, as review of his performance was not even on the agenda of that meeting. These allegations were confirmed by other board members and the HR manager, who were witnesses of the Claimant.

Dr. Pamba sought multiple remedies, including declaration of unfair termination, reinstatement, damages, and compensation for reputational harm. The remedy for reinstatement was, however later abandoned as the Claimant found another job during the pendency of the suit.

The Respondents, on the other hand, alleged that the termination of the Claimant’s contract was lawful and was done in accordance with the law and the Hospital’s HR policy. They claimed that the Claimant was dismissed following his refusal to engage in a performance enhancement plan due to underperformance in his probation period. 

Legal Issues:

• Whether the termination of Dr. Pamba’s employment was procedurally and substantively fair/Whether the Claimant's contract of employment was automatically confirmed
• Whether his rights under the Employment Act and the Constitution were violated/Whether the Claimant was entitled to fair procedure during termination in terms of section 41
• Whether the Respondents breached the Nairobi Hospital Board Charter.
• Whether the 2nd Respondent (Board Chair) was personally liable.
• What remedies, if any, were available to the Claimant/Whether the Claimant was entitled to compensation for his termination/Whether the Claimant was entitled to compensation for his termination

Legal Principles Applied:

• Sections 41, 43, 45, 49 & 50 of the Employment Act, 2007: Governing fair termination procedures and remedies.
• Article 41 of the Constitution of Kenya, 2010: Right to fair labour practices.
• Common law principles on employment contracts and fiduciary duties.
• Consideration of the Board Charter as part of the governance framework binding the hospital.

Findings:

• Procedural Unfairness: No proper hearing or valid process was followed before Dr. Pamba was terminated.
• Substantive Unfairness: The reasons provided for termination were found to be unsubstantiated and politically motivated.
• Violation of Board Charter: The court found breaches of corporate governance standards, especially by the board chair.
• Personal Liability: The 2nd Respondent, Dr. Irungu Ndirangu, was found jointly liable due to his central role in the unlawful dismissal.
• Reputational Harm: The court recognized the significant damage to Dr. Pamba’s professional reputation.

Disposition / Judgment:

• The court declared the termination unlawful, unfair, and in bad faith.
• Awarded Dr. Pamba KES 206 million in damages for wrongful dismissal, loss of income, and reputational harm.
• The award was suspended for 30 days pending an anticipated appeal by the respondents. 

Significance/Jurisprudential impact:

• This case reinforces strict adherence to due process in executive terminations.
• Affirms that board members may be held personally liable for fiduciary breaches and misconduct.
• Sets a high standard for corporate governance and employee protections, especially in high-level positions.
• Recognizes non-monetary harm such as reputational loss as compensable.
• Section 41 of the Employment Act is coached in mandatory terms. The learned judge emphasized that section 41 of the Employment Act does not allow for ifs and buts and must be strictly adhered to by employers during termination.
• End of probation period automatically confirms an employment contract in case of non-communication by the employer- The Respondent hospital has paid hefty consequences for failure to make appropriate communications following the end of the Claimant’s probation period. Employers must therefore make necessary communications in a procedural manner to an employee in probation if they intend to take action other than confirmation of the employee’s contract. 

Legal Liability for Copyright Infringement: The Case of Rebecca Wanjiku v Christ is the Answer Ministries (CITAM) & Isaac Peter Kalua

🧾 Legal Case Brief

Case: Rebecca Wanjiku v Christ is the Answer Ministries (CITAM) & Isaac Peter Kalua
Citation: Civil Case 66 of 2020; Judgement on 21 May 2021, High Court Nairobi (Milimani Commercial Court) (Full Case)
Judge: Justice Grace Wangui Ngenye‑Macharia
Counsel: Mr Joseph Mwangi for the Plaintiff; Miss Mwangi for the Defendants

1. Facts

• Plaintiff: Rebecca Wanjiku, registered copyright owner of the Kikuyu gospel song “Rungu Rwa Ihiga”.
• Defendants:

1.        CITAM, a church that allegedly adapted and performed the song under the title “Athuri Mwihithe” without permission.

2.        Isaac Peter Kalua, likely involved in recording/production.

• Relief sought: Prohibitory and mandatory interlocutory injunction to restrain unauthorized performance, distribution, production, and to compel delivery of infringing content.

2. Issues

1.        Did the Plaintiff demonstrate a prima facie case of copyright infringement?

2.        Would the Plaintiff suffer irreparable harm absent an injunction?

3.        Which party should bear the costs, pending full trial?

 

3. Applicable Law

• Section 22 & 23, Copyright Act 2001: protection of musical works; exclusive rights covering reproduction, adaptation, performance.
• Section 35: infringement triggered by unauthorized use.
• Section 38: remedies available include injunctions.
• Giella v Cassman Brown [1973] EA 358: standard for injunctive relief (strong prima facie case; balance of convenience; no adequate remedy at law)

 

4. Plaintiff’s Arguments

• Held a valid copyright, confirmed by KECOBO certificate.
• Presented a side-by-side transcript comparison, certified and translated, evidencing similarity between her song and the defendants’ version (Case).
• Cited Nonny Gathoni Njenga v Masitsa and Mrao Ltd v First American Bank, to show the threshold for prima facie is “genuine and arguable”. 
• Fled concern for irreparable harm, noting that damages are inadequate for clear breaches of copyright — supported by comparable jurisprudence. 

5. Defendants’ Arguments

• Challenged similarity, citing biblical expressions, and submitted no evidence of direct copying (Case reference).
• Argued absence of oral evidence and alleged that monetary damages would suffice—relying on Dedan Maina Warui v Safaricom (case reference).
• Claimed used common Christian phraseology, not proprietary lyrics or composition.

 

6. Court’s Analysis & Holding

• Found a prima facie case established: valid registration and transcript comparison met the threshold (refer to full case ).
• Agreed irreparable harm would result: damages inadequate in clear-cut infringement.
• Balanced convenience in Plaintiff’s favour, pending full trial.
• Consequently, granted interlocutory injunction, with costs awarded accordingly.

 

7. Legal Significance

• Strengthens copyright protection for creators in religious settings.
• Confirms requirement for affirmative proof (e.g., transcripts, certification, registration).
• Reinforces injunctive relief as the preferred remedy in clear infringement cases, as damages may not redress harm fully.
• Alerts churches and religious organisations to license or seek formal consents before adapting gospel music.

 

8. Conclusion & Next Steps

• The interlocutory injunction remains until the full trial where final remedies and potential damages will be determined.
• Parties preparing for full trial should focus on:
• Expert music evidence.
• Evidence of commercial distribution or profit.
• Proof of moral rights violation or attribution failures.

Legal Analysis on Enforceability of Parental Naming Rights – The Case of In Re Baby NWW (The Minor) [2025] KEHC 3306 (KLR)

1. Introduction

This memorandum provides a legal analysis of the decision in In Re Baby NWW (The Minor), Misc. Application E168 of 2024, with focus on the constitutional and statutory obligations of parents regarding naming a child, and the role of the Registrar of Births in enforcing identity rights.

 

2. Case Overview

In this matter, the Applicant (CKM) sought court intervention after the 1st Respondent (SW) registered their child’s name (“NWW”) unilaterally. The Applicant argued that this contravened their right to participate in naming the child, and violated the child’s right to identity.

The High Court held that both parents must be involved in naming the child and ordered the parties to agree on a joint name within 30 days, after which the Registrar would correct the birth certificate accordingly.

 

3. Legal Framework

a) Constitution of Kenya, 2010

• Article 53(1)(a): Every child has the right to a name and nationality from birth.
• Article 53(2): A child’s best interests are of paramount importance in every matter concerning the child.
• Article 45(3): Parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage, and at its dissolution.

b) Children Act, 2022

• Section 8(1): Every child shall have a right to a name from birth.
• Section 6(1): Parents have equal and joint parental responsibility for their child.
• Section 98: Provides for correction of names in the register of births on the basis of error or by order of the court.

c) Registration of Births and Deaths Act (Cap. 149)

• Section 10(1): Provides for re-registration of births where particulars need correction, including name changes directed by court order.

 

4. Key Judicial Findings

• The Court confirmed that both parents have equal responsibility and authority in naming their child.
• The unilateral registration by one parent was found to be contrary to the principle of shared parental responsibility and inconsistent with the Constitution.
• The child’s right to identity was considered central to the dispute, requiring corrective intervention by the Court and the Registrar.

 

5. Comparative Jurisprudence

a) In re Baby AOO [2019] eKLR

The High Court held that naming a child is a fundamental part of a child’s identity and that both parents must participate in this decision. It ordered the Registrar to reflect both names jointly chosen by the parents.

b) GMM v HNM [2018] eKLR

The Court restrained one parent from changing the child’s surname without the consent of the other parent, reaffirming that such decisions require mutual agreement.

These cases align with In Re Baby NWW and confirm the principle that courts will intervene where naming disputes infringe on either parent’s rights or the best interests of the child.

 

6. Implications and Recommendations

• Legal practitioners should counsel parents on their equal legal status in parental decision-making, including naming rights.
• The Registrar of Births must exercise caution and, where appropriate, require both parents' consent or a court order before registering or amending a child’s name.
• Parties seeking redress should:
• Document their objections promptly.
• Seek interim relief (injunctions) where unilateral action has already been taken.
• Pursue declaratory orders and administrative corrections under Section 98 of the Children Act.

 

7. Conclusion

In Re Baby NWW affirms the centrality of joint parental responsibility and the child’s right to identity under Kenyan law. It provides a framework for how courts should address unilateral acts relating to naming, and clarifies the Registrar's duties in such contexts. It stands as binding authority on birth registration disputes involving both legal and constitutional dimensions.