SAID HEMED SAID v EMMANUEL KARISA MAITHA & ANOTHER [2000] KECA 354 (KLR)

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.

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.

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.

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.