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Court of AppealDismissedCivil Appeal 149 of 2001· [2005] KECA 356 (KLR)

Francis Origo & another v Jacob Kumali Mungala

Court of Appeal
14 October 2005
ROR.S.C. OmoloEOE.O. O'KubasuEGE.M. Githinji
3,088 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot use review to revive a case 20 years later, especially after you already tried to appeal.

What this practically means

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Executive summary

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This second appeal arose from a protracted land dispute over Chepsaita Settlement Scheme/35, about 62 acres, purchased from Roda Jepkosgei but registered in the respondent's name. The respondent obtained an eviction order in the Resident Magistrate's Court; the appellants' appeal to the High Court (Mead J) was dismissed on 31 January 1981, the judge holding that any trust arrangement was void under section 6(1) of the Land Control Act. Their notice of appeal to the Court of Appeal was filed out of time and the appeal was struck out by consent on 28 December 1983. Twenty years after the judgment, the appellants applied for review under order XLIV of the Civil Procedure Rules; the Commissioner of Assize (Visram) dismissed the application, citing inordinate delay and the end-of-litigation principle. The Court of Appeal (Omolo, O'Kubasu and Githinji JJA) dismissed the appeal with costs. It held that under order XLIV rule 1(1)(a) review lies only where no appeal has been preferred; since the appellants had filed both a notice and a record of appeal, the review application was incompetent, following Kisya Investments Ltd v Attorney General. The alleged newly discovered evidence of the seller failed because the witness was known to the parties at trial. The court affirmed that an erroneous conclusion of law or evidence is a ground of appeal, not of review, and that a 20-year delay was inordinate and unreasonable. The decision binds subordinate courts and the High Court on the incompatibility of review with a previously preferred appeal.

Key legal issues

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01

Effect of a struck-out appeal on a subsequent review application

Holding

Once an appeal has been preferred (notice of appeal filed and record filed), a subsequent review application is barred even if the appeal was later struck out by consent.

Reasoning

Order XLIV rule 1(1)(a) permits review by a person aggrieved by a decree from which an appeal is allowed but from which no appeal has been preferred. The appellants filed a notice of appeal and a record of appeal, which was struck out by consent. Following Kisya Investments Ltd v Attorney General, the crucial date is when the review application is filed; by then an appeal had been preferred, so review was incompetent.

02

Discovery of new and important matter

Holding

A witness who existed and was known to the parties at trial cannot be described as newly discovered evidence.

Reasoning

The appellants' complaint centred on the refusal of an adjournment to call Roda Jepkosgei. The court held this could hardly be discovery of new and important evidence because the witness existed and was known to the parties; the appellants did not show they had discovered a new witness.

p. 5
03

Delay in the review application

Holding

A 20-year delay in applying for review is inordinate and unreasonable and offends the principle that there must be an end to litigation.

Reasoning

Order XLIV rule 1 requires the application to be made without unreasonable delay. The application was made 20 years after the judgment; the reasons given were poor legal advice and extra-judicial interference, which the Commissioner held could not render such a delay reasonable. The Court of Appeal agreed.

04

Error of law as ground for review

Holding

An erroneous conclusion of law or evidence is not a ground for review; it may only be a ground of appeal.

Reasoning

The court held that once the appellants chose review rather than appeal they proceeded in the wrong direction and came to a dead end. Errors apparent on the face of the record under order XLIV do not extend to erroneous conclusions of law or evidence, which are matters for appeal.

p. 6

Legal principles established

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  • A review application is incompetent where an appeal has already been preferred; the crucial date is the date the review application is filed.
  • An erroneous conclusion of law or evidence is a ground for appeal, not for review.
  • An application for review must be made without unreasonable delay.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder XLIV rules 1, 2, 3 and 4
  • Civil Procedure RulesOrder XLIV rule 1(1)(a)
  • Civil Procedure ActSections 3 and 3A
  • Land Control ActSection 6(1)
  • Court of Appeal RulesRule 93(3)

Cases cited (5)

  • Gichuhi Farmers Company Limited vs Gichamba and another
    [1973] EA 8

    Voidness of trust transactions for non-compliance with section 6(1) of the Land Control Act (quoted from Mead J's judgment)

  • Dyer - vs- Dyer
    (1788), 2 COX Eq Cas 92

    Resulting trust principles; cited in the appellants' grounds of appeal

  • Pettit -vs- Pettit
    [1970] AC 777; [1969] 2 All ER 385

    Resulting trust principles; cited in the appellants' grounds of appeal

  • Ujagar Singh v Runda Coffee Estates
    [1966] EA 263

    Relied on by the Commissioner below; attacked by the appellants

  • Kisya Investments Ltd v Attorney General and R L Odupoy
    Civil Appeal No 31 of 1995 (unreported)

    Proposition that a party whose notice of appeal was struck out cannot proceed by way of review; review application incompetent after appeal is preferred

On appeal from
High Court
H.C.C. Appeal No. 10 of 1980
Jurisdiction invoked
Second appeal to the Court of Appeal under the Constitution/statutory appellate framework (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (24)

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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, "Francis Origo & another v Jacob Kumali Mungala", Case Analysis (2005). Civil Appeal 149 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/356/eng@2005-10-14

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