Kingata Kithoi & another v Mbevi Kioko & another [1982] KECA 6 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was any mistake or error apparent on the face of the record in the High Court's appellate judgment sufficient to justify review under Section 80 of the Civil Procedure Act and Order XLIV rule 1(1)
- 2.Whether the High Court judge, having found the District Magistrate's decision correct, could nonetheless vacate his own appellate judgment and dismiss the appeal in the review proceedings
- 3.Whether the review application should have been dismissed, there being procedurally nothing to review in a final appellate judgment
Key legal issues
#Whether the High Court judge's review ruling could stand where it contradicted the judge's own holding in the appellate judgment
The review orders were set aside: having held that the District Magistrate's judgment was correct and that no question of law was involved, the judge could not properly vacate his appellate judgment and dismiss the appeal on review
Law JA found the review orders incomprehensible against the judge's own conclusion that the lower court's judgment was a clear and unambiguous finding on the facts. The judge adhered to that view in the review ruling, so the judgment was reasonable and no error apparent on the face of the record justified corrective action on review. The review application should simply have been dismissed.
Whether there was anything to review in a final second-appeal judgment
No. The High Court appellate judgment was the final adjudication under Section 71A(2) of the Civil Procedure Act, and the review application should have been promptly and summarily dismissed
Miller JA reasoned that the subject of the review application was an appellate judgment of the High Court which, by Section 71A(2), was already the final adjudication in the case as a matter of law. Vacating it was an unwarranted and prohibited exercise that left the litigants without a final determination. Order XLIV rule 3 required dismissal where there was not sufficient ground for review.
Legal principles established
#- A final appellate judgment of the High Court in a second appeal is the final adjudication in the case as a matter of law and there is procedurally nothing to review; a review application against it must be promptly and summarily dismissed
- A review application must be dismissed where there is not sufficient ground for review, and an error apparent on the face of the record is required before a judgment will be corrected on review
- A court on second appeal should not interfere with findings of fact made by a trial magistrate who saw and heard the witnesses
Court orders
#- 1.The appeal is allowed with costs
- 2.The confused, contradictory and incomprehensible orders made on the application for review are set aside
- 3.The appellants are given the costs of the review application in the High Court
- 4.The orders made by the learned judge on the appeal before the High Court are restored: that appeal was allowed with costs; the judgment of the District Magistrate is restored and that of the Resident Magistrate set aside, with costs to the appellants of the proceedings in those courts
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment. Held that the High Court judge's review ruling was confused and contradictory: having concluded that the District Magistrate's judgment was correct and that no error appeared on the face of the record, the judge nonetheless vacated his own appellate judgment and dismissed the appeal. No mistake or error apparent on the face of the record existed to justify review, so the review application should have been dismissed. Proposed allowing the appeal, setting aside the review orders, and restoring the High Court appellate judgment.
I can only think that the learned judge in this case suffered from a temporary aberration, and instead of dismissing the application for review, he dismissed the appeal itself.p. 2
Wrote the judgment
Wrote a separate concurring judgment. Held that the High Court appellate judgment under Section 71A(2) of the Civil Procedure Act was the final adjudication in the case; there was procedurally nothing to review, and the review application should have been promptly and summarily dismissed. The order vacating the appellate judgment was an unwarranted and prohibited exercise, leaving the litigation without a final determination. Agreed with the orders proposed by Law JA.
Procedurally, there was therefore nothing to review.p. 4
- On appeal from
- High Court of Kenya, Nairobi
- Civil Appeal No 46 of 1979 (ruling on review application, July 8, 1979, Wilkinson-Guillemard J)
- Jurisdiction invoked
- Second appeal to the Court of Appeal from the High Court's ruling on a review application under Section 80 of the Civil Procedure Act and Order XLIV of the Civil Procedure Rules
Relief refused
#The respondents' review application (seeking vacation of the High Court appellate judgment) was refused
No mistake or error apparent on the face of the record existed in the High Court's appellate judgment; the review application should have been dismissed
Costs
Appeal allowed with costs to the appellants; costs of the review application awarded to the appellants; the High Court's restored orders gave the appellants costs of the appeal and of the proceedings in the Resident Magistrate's Court and District Magistrate's Court
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.
Procedurally, there was therefore nothing to review.
I can see no mistake or error apparent from the record of appeal which could justify any corrective action on review.
In my opinion, the application for review should have been promptly and summarily dismissed without entering upon any form of review of law or facts, and consequently, the first ground of appeal succeeds.
I would allow this appeal, with costs. I would set aside the confused, contradictory and incomprehensible orders made on the application for review, the subject of this appeal, and give the appellants the costs of that application.
Issues in the judgment
#The District Court is described inconsistently within the judgment as 'District Court at Uaani in Machakos District' and as 'District Magistrate's Court at Tawa'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kingata Kithoi & another v Mbevi Kioko & another [1982] KECA 6 (KLR)", Case Analysis (1982). Appeal from High Court, Nairobi Civil Appeal No 46 of 1979 (review ruling dated July 8, 1979). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/6/eng@1982-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.