Philip Ochilo Orero v Ambrose Seko [1984] KECA 50 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that you can ask the High Court to review a decision even if you could have appealed but chose not to.
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's summary rejection of the appellant's appeal under section 79B of the Civil Procedure Act was justified
- 2.Whether an application for review under section 80 of the Civil Procedure Act is available where a party had a right of appeal but did not prefer an appeal, and whether section 80 sets a time limit
- 3.Whether Schofield J correctly construed order XLIV rule 1 as confining review to a single ground
- 4.Whether the judge's erroneous construction of the review provisions precluded him from exercising his discretion
Key legal issues
#Whether summary rejection under section 79B was proper
The summary rejection was erroneous because the memorandum of appeal raised substantial grounds of law, including whether the magistrate should have disqualified himself and whether joinder of the three defendants prejudiced the appellant.
Section 79B permits a judge to reject an appeal summarily only where there is no sufficient ground for interfering with the decree or order. The power is to be used most carefully and only in the clearest of cases, exemplified by appeals based wholly on findings of fact. The appellant's memorandum raised substantial questions of law, so summary rejection was unwarranted.
Scope of review under section 80 and order XLIV rule 1
Schofield J misread order XLIV rule 1, which permits review on three grounds, not one; his erroneous view of the rule caused him to exclude himself from exercising his discretion. Section 80 is not limited to applicants unable to appeal.
Order XLIV rule 1 permits review where there is new and important matter or evidence not producible despite due diligence, an error apparent on the face of the record, or any other sufficient reason. The judge recited only one ground and so precluded himself from exercising his discretion. Similarly, section 80 applies even where a party had a right of appeal but did not pursue it; the delay, though a material factor, was not declared inordinate.
Legal principles established
#- The summary rejection power under section 79B of the Civil Procedure Act should be exercised only in the clearest of cases, such as appeals based wholly on findings of fact.
- Review under section 80 of the Civil Procedure Act and order XLIV rule 1 is available to a party who had a right of appeal but did not prefer an appeal.
- Order XLIV rule 1 recognises three grounds for review: new and important matter or evidence, error apparent on the face of the record, and any other sufficient reason.
Court orders
#- 1.Appeal allowed
- 2.Order of the High Court (Schofield J) dismissing the application for review set aside
- 3.Proceedings remitted to the High Court for the notice of motion under section 80 of the Civil Procedure Act and order XLIV rule 1 to be heard according to law
- 4.Appellant awarded costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Agreed with Nyarangi Ag JA, adding that Scriven J's order was appealable but no appeal was preferred, so the matter fell within section 80(a) and was capable of review, and that the judge had considered only one of three grounds for review under order XLIV rule 1(1), precluding himself from exercising his discretion.
Scriven J's order of May 10, 1981 was appealable but no appeal to this court was preferred. Therefore the case falls within section 80(a) of the Civil Procedure Act and was capable of being reviewed under that section.p. 2
Held the learned judge gave too narrow an interpretation to both section 80 and order XLIV rule 1; a party who has a right of appeal but has not appealed may still apply for review, and the judge's incorrect legal ground precluded proper exercise of discretion; the delay was not shown to be inordinate.
The learned judge gave too narrow an interpretation to both section 80 and order XLIV rule 1 of the Civil Procedure Act and Rules respectively.p. 2
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court's decision dismissing an application for review under section 80 of the Civil Procedure Act and order XLIV rule 1
Relief refused
#Immediate hearing of the review application or restoration of the appeal
The Court of Appeal remitted the review application to the High Court for determination rather than determining it itself
Costs
The appellant was awarded his costs of the appeal
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.
The power should be used most carefully and as was stated in Peter Nzioki & Kivilu Musimi v Kitusa Civil Appeal No 54 of 1982 (unreported), only in the clearest case such as an appeal based wholly on matters of fact upon which proper findings will have been made.
The learned judge precluded himself from properly exercising the discretion conferred on the court by the two provisions of the Civil Procedure Act and Rules.
I would remit the proceedings to the High Court so that the application by notice of motion under section 80 of the Civil Procedure Act and order XLIV rule 1 for a review may be heard according to law.
Accordingly the appeal should be allowed with costs. There will be an order in the terms proposed by Nyarangi Ag JA.
Issues in the judgment
#The date of Scriven J's order is given inconsistently within the judgment - once as May 19, 1981 and once as May 10, 1981.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip Ochilo Orero v Ambrose Seko [1984] KECA 50 (KLR)", Case Analysis (1984). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/50/eng@1984-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.