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Court of AppealPartially AllowedAppeal from High Court, Nairobi Civil Appeal No 46 of 1979 (review ruling dated July 8, 1979)· [1982] KECA 6 (KLR)

Kingata Kithoi & another v Mbevi Kioko & another [1982] KECA 6 (KLR)

Court of Appeal of Kenya
19 March 1982
2,577 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This land-boundary dispute began in the District Magistrate's Court, where the present respondents (plaintiffs) lost to the appellants (defendants), the magistrate finding that the boundary marked by sisal hedges was the true one. The Resident Magistrate at Machakos allowed the respondents' appeal, but the High Court (Wilkinson-Guillemard J), in a final second appeal under Section 71A(2) of the Civil Procedure Act, allowed the appellants' appeal and restored the District Magistrate's judgment. The respondents, having no further right of appeal, applied for review under Section 80 and Order XLIV, alleging errors apparent on the face of the record. The judge, while reiterating that the lower court's judgment was correct and no question of law was involved, then inexplicably vacated his own appellate judgment and dismissed the appeal. The Court of Appeal (Law, Miller and Potter JJA) allowed the appellants' appeal. Law JA held the review orders were confused, contradictory and incomprehensible, and that no error apparent on the face of the record justified review. Miller JA, concurring, held that a final appellate judgment left procedurally nothing to review and the application should have been summarily dismissed. The Court set aside the review orders, restored the High Court's appellate orders with costs to the appellants in all courts.

Key legal issues

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01

Whether the High Court judge's review ruling could stand where it contradicted the judge's own holding in the appellate judgment

Holding

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

Reasoning

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.

p. 2
02

Whether there was anything to review in a final second-appeal judgment

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The appeal is allowed with costs
  2. 2.The confused, contradictory and incomprehensible orders made on the application for review are set aside
  3. 3.The appellants are given the costs of the review application in the High Court
  4. 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
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

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, "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.