Court of Appeal At Nairobi v Equity Building Society
The bottom line
#Kenya's Court of Appeal confirmed that you cannot use a review application to relitigate a losing case—genuine errors must be obvious, and new evidence must truly be new.
What this practically means
#Executive summary
#Key legal issues
#Scope of 'error apparent on the face of the record' as a ground of review
An error for review purposes must be self-evident on the record; a wrong view of law or a merits finding after full trial does not qualify and must be pursued on appeal
The Court of Appeal reiterated the established test: a review corrects only apparent errors or omissions that need no elaborate argument to establish. The alleged inconsistencies were the trial Judge's findings reached after full consideration of evidence and submissions; a different view by another Judge, or an erroneous legal conclusion, is not a review ground. Counsel's complaint of inconsistent interlocutory and final findings went to the merits, appealable but not reviewable.
Discovery of new and important matter or evidence
The ruling of 24th February 1993 relied on as new evidence was not new: the matters it raised were canvassed, made an issue (issue No. 8) and decided at trial
The appellant relied on a 1993 interlocutory ruling said to have been missing from the file at judgment. The Judge below held it was an interlocutory ruling in an injunction application whose facts were not decisive on their own; the issues of cancellation of sub-division, the transfer, and alleged fraud had been raised during trial, fully canvassed, and decided. The appellate court found due diligence was not shown and no new matter was discovered.
Legal principles established
#- Review lies only to correct an error or omission that is self-evident and requires no elaborate argument to establish; a wrong conclusion of law after a full trial is a ground of appeal, not of review
- Misconstruing a statute or other provision of law, or an erroneous exposition of the law by the court, cannot be a ground for review
- Findings made by a court after a full trial on the merits, even if wrong, are not mistakes or errors envisaged under Order XLIV of the Civil Procedure Rules
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 5992 of 1992 (ruling dated 20th May, 2002)
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory ruling of the High Court (review application under Section 80 of the Civil Procedure Act and Order XLIV Rules 1, 2 and 3 of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Court of Appeal At Nairobi v Equity Building Society", Case Analysis (2007). Civil Appeal 316 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/473/eng@2007-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.