SAID HEMED SAID v EMMANUEL KARISA MAITHA & ANOTHER [2000] KECA 354 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judges must consider requests to reconsider their rulings when no appeal has been filed, especially where rulings conflict.
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 Rulings of 17th and 20th May, 1999 were conflicting, so as to disclose an error apparent on the face of the record justifying review.
- 2.Whether the review application was barred by res judicata.
- 3.Whether the learned Judge could refuse to determine the review application on the ground that the proper remedy was an appeal.
- 4.Whether the Petitioner's counsel could be heard on aspects of the scrutiny and recount not relating to the physical count of votes, including the absence of Presiding Officers' statements required by regulation 34 of the Presidential and Parliamentary Elections Regulations.
Key legal issues
#Whether the coexistence of the Rulings of 17th and 20th May, 1999 constituted an error apparent on the face of the record justifying review.
Yes. The two rulings were irreconcilable: the first permitted informal submissions on aspects of scrutiny not relating to the count of votes, while the second refused to hear counsel on such matters. The conflict was visible on the record itself and amounted to an error on the face of the record.
Akiwumi JA traced the two rulings. On 17th May 1999 Hayanga J, though displeased at counsel's piecemeal approach, expressly granted leave for informal oral submissions on scrutiny aspects beyond the vote count. On 20th May 1999 the same judge refused to hear counsel on the absence of the Presiding Officers' statements, giving reasons the appellate court described as inept. Because both rulings formed part of the record, their conflict was apparent without extrinsic evidence and amounted to an error on the face of the record justifying review.
Whether a judge may decline to determine a review application on the ground that the aggrieved party should appeal instead.
No. Where an appeal lies but has not been filed, section 80 of the Civil Procedure Act and Order 44 (1)(b) of the Civil Procedure Rules oblige the judge to consider the review application; refusal on the basis that an appeal is the proper remedy is wrong.
Hayanga J had reasoned that where a court is aware of what it is doing, review does not lie if the decision is erroneous, since a court has jurisdiction to decide wrongly and only a court of appeal may correct it. Akiwumi JA rejected this: the statutory right of review applies precisely where an appeal lies but none has been filed. No appeal had been lodged against the rulings, so the judge was bound to entertain the review application and erred in refusing it on that ground.
Whether the review application was barred by res judicata.
No. The 1st Respondent's preliminary objection on res judicata was rightly dismissed by the learned Judge, and the Court of Appeal endorsed that conclusion.
The 1st Respondent objected that the review was res judicata because the matters had already been dealt with. Hayanga J dismissed the objection and heard the review application. Akiwumi JA endorsed that outcome: the review arose directly out of the conflict between the two rulings, which was itself the error apparent on the record, so the application was the proper mechanism for resolving that conflict rather than an attempt to re-litigate a matter already decided.
Whether the Petitioner could be heard on aspects of the scrutiny and recount not relating to the physical count of votes, including the absence of Presiding Officers' statements under regulation 34.
Yes. The Ruling of 17th May 1999 permitted informal submissions on such aspects; the later refusal to hear counsel on the missing Presiding Officers' statements thwarted that right and could not stand.
Counsel for the petitioner sought to raise the absence of written statements which Presiding Officers are required to make under regulation 34 of the Presidential and Parliamentary Elections Regulations and which should have been delivered to the Registrar under rule 19 of the election petition rules. The Ruling of 17th May 1999 expressly allowed submissions on such aspects. The later refusal to hear counsel, on grounds of surprise, ambush and delay which could have been resolved by simply asking the Deputy Registrar whether the statements were filed, thwarted that right and could not stand.
Legal principles established
#- Where two rulings of the same court on the same matter are conflicting, that conflict apparent on the record constitutes an error on the face of the record capable of supporting review.
- Where an appeal lies but none has been filed, the judge is required by section 80 of the Civil Procedure Act and Order 44 (1)(b) of the Civil Procedure Rules to consider a review application and may not refuse it on the ground that an appeal is the proper remedy.
- A party granted leave to be heard on aspects of scrutiny not relating to the physical counting of votes retains that right, and a later inconsistent ruling thwarting it is erroneous.
Court orders
#- 1.The Ruling of the learned Judge (Hayanga, J.) of 15th October, 1999 is set aside.
- 2.The Petitioner's counsel is allowed to file a formal application and to submit on matters discovered during the scrutiny.
- 3.Costs of the review application and of the appeal are awarded to the Appellant.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Akiwumi JA delivered a separate judgment concurring with the draft judgment of Shah JA, which set out the background fully. He held that the Rulings of 17th and 20th May 1999 conflicted, disclosing an error on the face of the record; that the res judicata objection was rightly dismissed; that the judge wrongly refused to consider the review application although no appeal had been filed; and that the Petitioner's counsel should be allowed to file a formal application and submit on matters discovered during the scrutiny. He allowed the appeal with costs to the Appellant.
In my view, the appeal succeeds and the Ruling of the learned Judge of 15th October, 1999, is hereby set aside and would further order that the Petitioner's counsel should be allowed to file a formal application and to submit on matters discovered during the scrutiny.p. 3
- On appeal from
- High Court
- Jurisdiction invoked
- Not expressly stated in the judgment. The appeal lies against rulings in an election petition tried by a Judge (Hayanga, J.); the judgment discusses the right of review under section 80 of the Civil Procedure Act and Order 44 (1)(b) of the Civil Procedure Rules.
Relief refused
#The 1st Respondent's preliminary objection that the review application was res judicata.
The objection was rightly dismissed by the learned Judge and the Court of Appeal endorsed that conclusion; the review arose directly out of the conflict between the two rulings, which was itself an error on the face of the record.
Costs
Costs of the review application and of the appeal to the Appellant.
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.
In my view, the appeal succeeds and the Ruling of the learned Judge of 15th October, 1999, is hereby set aside and would further order that the Petitioner's counsel should be allowed to file a formal application and to submit on matters discovered during the scrutiny. Costs of the review application and of the appeal to the Appellant.
the two Rulings of 17th and 20th May, 1999, are conflicting and there seems therefore to be an error on the face the record of which the Rulings form part.
the right of review given by section 80 of the Civil Procedure Act and Order 44 (1)(b) of the Civil Procedure Rules, requires the learned judge to consider a review application where an appeal lies but as in this case, no appeal has been filed, and it was wrong for this reason, for him to refuse to do so.
The first ruling clearly permitted the Petitioner to be heard informally on issues that arise out of scrutiny but which do not relate to the physical counting, examination and consideration of the votes cast.
Issues in the judgment
#The cause title states the court sits at Mombasa ('IN THE COURT OF APPEAL AT MOMBASA') but the judgment is dated and delivered at Nairobi.
The same rule 19 is referred to under two different instrument names: 'National Assembly Elections (Election Petition Rules)' and later 'National Assembly Elections (Election Rules)'.
The coram lists three Judges of Appeal (Gicheru, Akiwumi and Shah) and the text refers to a draft judgment of Shah JA, but only the judgment of Akiwumi JA appears in the document; the lead judgment and any concurrence by Gicheru JA are not included, so bench unanimity is inferred from the absence of any dissent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SAID HEMED SAID v EMMANUEL KARISA MAITHA & ANOTHER [2000] KECA 354 (KLR)", Case Analysis (2000). Civil Appeal 237 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/354/eng@2000-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.