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Court of AppealDismissedCivil Appeal No. 211 of 1996

NATIONAL BANK OF KENYA LIMITED vs NDUNGU NJAU [1997] KECA 389 (KLR)

Court of Appeal of Kenya
27 May 1997
RKR. O. KwachAAA. M. AkiwumiGPG. S. Pall
2,172 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that review fixes only obvious, self-evident errors — a wrong legal decision must be challenged by appeal, not review.

What this practically means

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Executive summary

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The respondent, Ndung'u Njau trading as Radius Construction Company, sued National Bank of Kenya alleging that the Bank had unlawfully debited his account with over Shs.266,000 in advocates' fees and recovery charges, amounting to a clog on his right of redemption, and sought an injunction restraining sale of his charged land together with an order that the Bank tax the costs expended on his account. Githinji J declined to order taxation in those proceedings but held, on the strength of ss.47(1) and 50(1) of the Advocates Act and Order 52 r 5(1) of the Civil Procedure Rules, that the respondent could separately apply for taxation by originating summons, and found the fees prima facie excessive. The Bank sought review of that order under s.80 of the Civil Procedure Act and Order XLIV r 1, arguing error apparent on the face of the record. The High Court dismissed the review application, holding that a wrong exercise of discretion or an erroneous view of the law is not a ground for review. The Bank appealed. The Court of Appeal (Kwach, Akiwumi and Pall JJ.A) dismissed the appeal with costs. It held that the notice of motion was fatally defective for failing to state the grounds of review in its body as required by Order L r 3, and that in any event an erroneous conclusion of law or a wrong exercise of discretion is a ground for appeal, not review; a judge cannot sit in appeal on his own judgment. The decision affirms the narrow scope of review and the mandatory formal requirements for notices of motion.

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 requiring grounds to be stated in the notice of motion
  2. 2.Whether an error of law or a wrong exercise of discretion by a judge constitutes a mistake or error apparent on the face of the record capable of grounding review under Order XLIV
  3. 3.Whether the learned trial Judge correctly declined to review his earlier order of 3rd July 1995

Key legal issues

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01

Compliance with Order L r 3 of the Civil Procedure Rules

Holding

The notice of motion for review was fatally defective because it did not state the grounds of the application in its body, merely referring to affidavits and grounds of opposition already on file.

Reasoning

Order L r 3 mandates that every notice of motion state in general terms the grounds of the application. Referring to lengthy affidavits or to grounds of opposition filed in a different application does not satisfy this. On an application for review it is particularly necessary that the grounds appear in the body of the notice of motion itself.

p. 3
02

Scope of 'mistake or error apparent on the face of the record' as a ground for review

Holding

An erroneous conclusion of law, a misconstruction of a statute, or a wrong exercise of discretion is not an error apparent on the face of the record; such errors are grounds for appeal, not review.

Reasoning

Review exists to correct an apparent error or omission that is self-evident and needs no elaborate argument. It is not a vehicle for a judge to reconsider the law or evidence and reach a different decision, which would amount to sitting in appeal on his own judgment. Matters fully canvassed and consciously decided cannot be reviewed by the same court.

p. 4
03

Whether the trial Judge's refusal to order taxation of the Bank's advocates' costs was reviewable

Holding

The Judge had made a conscious decision on fully contested matters, exercising his discretion in favour of the respondent; his decision could not be revisited on review.

Reasoning

The grounds urged on review (no legal foundation for the injunction, want of jurisdiction, decision per incuriam) had all been urged and rejected before. Rehearing them on review would convert review into an appeal. The proper remedy against a wrong exercise of discretion or erroneous law is an appeal.

p. 4

Legal principles established

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  • A notice of motion must state in general terms the grounds of the application; it is insufficient to ground it on affidavits or previously filed grounds of opposition, and for review the grounds must appear in the body of the notice of motion.
  • An error apparent on the face of the record for purposes of review must be self-evident and not require elaborate argument; a wrong conclusion of law, misconstruction of a statute, or a different view another judge might take are not grounds for review.
  • A court cannot sit in appeal on its own judgment; a hotly contested issue already adjudicated cannot be reviewed by the same court.

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.

RK
majority
AA
majority
GP
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. 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 declining to order taxation of the Bank's advocates' costs

A wrong conclusion of law or exercise of discretion is a ground for appeal, not review; the notice of motion also failed to state the grounds of review as required by Order L r 3

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.
p. 3Definition of review
The error or omission must be self evident and should not require an elaborate argument to be established.
p. 3Standard for error apparent on the face of the record
Misconstruing a statute or other provision of law cannot be a ground for review.
p. 4Errors of law not reviewable
On an application for review, it is particularly necessary that the application should disclose in the body of the notice of motion the ground or grounds on which the review is being sought.
p. 3Formal requirements of a review application
For these reasons we do not find any merit in this appeal and hereby dismiss it with costs.
p. 4Disposition

Issues in the judgment

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minor

The judgment text contains a garbled/corrupted passage in the description of the plaint and the chamber summons prayers, obscuring part of the relief sought.

minor

The trial Judge's ruling is undated in the record; the court states it 'was delivered on 3rd July, 1995' by inference.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "NATIONAL BANK OF KENYA LIMITED vs NDUNGU NJAU [1997] KECA 389 (KLR)", Case Analysis (1997). Civil Appeal No. 211 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/389/eng@1997-05-27

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