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Court of AppealDismissedCivil Appeal (from High Court Civil Case No. 1399 of 1995)

National Bank of Kenya Ltd v Ndung'u Njau t/a Radius Construction Company

Court of Appeal of Kenya
27 May 1997
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The bottom line

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Kenya's Court of Appeal confirmed that a wrong legal conclusion must be challenged on appeal, not through review, and motion papers must state their grounds.

What this practically means

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Executive summary

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The appellant, National Bank of Kenya Ltd, appealed against an order of the High Court (Githinji J.) dated 2nd August 1995 in Civil Case No. 1399 of 1995, by which the learned Judge declined to review his earlier order of 3rd July 1995 and dismissed the Bank's notice of motion for review with costs. The underlying suit by the respondent, Ndung'u Njau t/a Radius Construction Company, concerned the Bank's debiting of substantial sums to the respondent's account as advocates' fees and recovery charges in enforcing a charge, and sought an injunction against sale of the charged land together with an order that the Bank tax the costs expended on the respondent's account. The Bank sought review on the ground of mistake or error apparent on the face of the record, contending that the injunction had no legal foundation, was made without jurisdiction and was per incuriam. The Court of Appeal held that the notice of motion failed to comply with the mandatory requirement of Order L r 3 of the Civil Procedure Rules that grounds be stated in the body of the notice. Nonetheless, considering the merits, the court held that review lies only to correct a self-evident error requiring no elaborate argument; an erroneous conclusion of law or misconstruction of a statute is a ground for appeal, not review. Since the matters had been fully canvassed and consciously decided, review would amount to the Judge sitting in appeal on his own judgment. The appeal was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant's notice of motion for review complied with the mandatory requirements of Order L r 3 of the Civil Procedure Rules
  2. 2.Whether a mistake or error apparent on the face of the record - including an erroneous conclusion of law or misconstruction of a statute - is a ground for review under Order XLIV of the Civil Procedure Rules
  3. 3.Whether the learned Judge's refusal to review his earlier order, on the basis that he could not sit in appeal on his own judgment, was correct

Key legal issues

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01

Compliance with the mandatory formal requirements of a notice of motion for review

Holding

The notice of motion did not comply with Order L r 3 because it did not state the grounds of the application in general terms, merely referring to affidavits and grounds of opposition.

Reasoning

Order L r 3 of the Civil Procedure Rules requires every notice of motion to state in general terms the grounds of the application. Merely grounding a notice on affidavits previously sworn or on grounds of opposition filed against an earlier application does not satisfy this mandatory requirement. On an application for review, the ground or grounds must be disclosed in the body of the notice of motion itself. The omission was fatal, though the court considered the merits in the broad interest of justice.

p. 3
02

Scope of the ground of review based on error apparent on the face of the record

Holding

Review lies only to correct an apparent error or omission that is self-evident and requires no elaborate argument; an erroneous conclusion of law or misconstruction of a statute is not a ground for review.

Reasoning

The court held that review may be granted where necessary to correct an apparent error or omission on the part of the court, but the error must be self-evident. It is insufficient that another Judge could have taken a different view, or that the court proceeded on an incorrect exposition of the law. Misconstruing a statute cannot be a ground for review. Such errors are for appeal, not review, otherwise the trial Judge would be sitting in appeal on his own judgment, which is not permissible in law.

p. 4
03

Whether the High Court Judge properly declined to review his discretionary injunction decision

Holding

The Judge's conscious exercise of discretion after full canvassing of the issues could not be revisited on review; the appeal was dismissed.

Reasoning

The matters in dispute had been fully canvassed before the learned Judge, who made a conscious decision and exercised his discretion in favour of the respondent. The grounds urged on review - that the injunction lacked legal foundation, was made without jurisdiction, or was per incuriam - had all been considered and rejected earlier. Reconsidering the law and evidence to reach a different decision would be tantamount to sitting in appeal on his own judgment, which is impermissible.

p. 4

Legal principles established

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  • A notice of motion must state in general terms the grounds of the application in its body; it is not enough to ground it on affidavits or grounds of opposition already filed.
  • An error apparent on the face of the record for purposes of review must be self-evident and not require elaborate argument; an incorrect exposition of the law or misconstruction of a statute is not a ground for review.
  • A court cannot review an issue it has already hotly contested and adjudicated upon; a wrong conclusion of law is a ground for appeal, not review.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Civil Case No. 1399 of 1995
Jurisdiction invoked
First appeal to the Court of Appeal against an order of the High Court (statutory appellate jurisdiction; no specific constitutional provision cited in the judgment)

Relief refused

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Review of the High Court order of 3rd July 1995

An erroneous conclusion of law is a ground for appeal, not review; the matters had been fully canvassed and consciously decided, and review would amount to the Judge sitting in appeal on his own judgment

p. 4

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established.
p. 4Test for review - error apparent on the face of the record
Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.
p. 4Erroneous conclusion of law is not a ground for review
An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.
p. 4Finality of contested determinations - no review by the same court
For these reasons we do not find any merit in this appeal and hereby dismiss it with costs.
p. 4Final orders - dismissal of the appeal

Issues in the judgment

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minor

The judgment contains typographical errors and inconsistent rendering of counsel's names (e.g. 'Mr. Kangaroo', 'Mr. Kingara' and 'Mr. Njuguna' appear for the same or related submissions), and the trial Judge's ruling is described as undated but understood to have been delivered on 3rd July 1995.

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, "National Bank of Kenya Ltd v Ndung'u Njau t/a Radius Construction Company", Case Analysis (1997). Civil Appeal (from High Court Civil Case No. 1399 of 1995). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.