National Bank of Kenya Ltd v Ndung'u Njau t/a Radius Construction Company
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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.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
#Compliance with the mandatory formal requirements of a notice of motion for review
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.
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.
Scope of the ground of review based on error apparent on the face of the record
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.
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.
Whether the High Court Judge properly declined to review his discretionary injunction decision
The Judge's conscious exercise of discretion after full canvassing of the issues could not be revisited on review; the appeal was dismissed.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
Appeal dismissed with costs to the respondent
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.
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.
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.
An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.
For these reasons we do not find any merit in this appeal and hereby dismiss it with costs.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.