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Court of AppealDismissedCivil Appeal 90 of 2008· [2009] KECA 366 (KLR)

George Gikubu Mbuthia v Housing Finance Company Ltd & 2 others [2009] KECA 366 (KLR)

Court of Appeal of Kenya
20 March 2009
EGE. M. GithinjiPWP. N. WakiJOJ. W. Onyango Otieno
1,975 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a litigant's appeal because his grounds attacked the wrong ruling and he had no second chance to reopen a withdrawn suit.

What this practically means

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Executive summary

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The appellant purchased suit property L.R. 36/11/1 Eastleigh Section II Nairobi in 1983 with a loan from HFCK secured by a mortgage. After default, HFCK's 1990 application for a decree of possession was dismissed, but in 2006 it sold the property to the third respondent under its statutory power of sale. The appellant then filed H.C.C.C. No. 1203 of 2006 against HFCK, the Attorney General and the third respondent, seeking a declaration of trespass, cancellation of the conveyance and damages. He subsequently filed a withdrawal notice under Order XXIV Rule 1 of the Civil Procedure Rules, and the Deputy Registrar recorded on 26th June 2007 that the suit was withdrawn with costs. When the appellant later sought to strike out the third respondent's defences, Rawal J upheld a preliminary objection on 22nd October 2007, holding the suit no longer existed. An application for review was dismissed on 5th December 2007. A further application dated 15th February 2008, invoking the court's inherent powers, sought to set aside both rulings; it was dismissed on 11th April 2008, the court holding it was functus officio. The Court of Appeal held that the grounds of appeal were extraneous to the decision appealed from, rendering the appeal incompetent; and that in any event the application was either a second review or an appeal against the court's own decision, was not maintainable, and was a gross abuse of process. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Competence of an appeal whose grounds do not address the decision appealed from

Holding

The appeal was incompetent because the twenty grounds of appeal ranged over the entire dispute rather than addressing the ruling of 11th April 2008.

Reasoning

Rule 84(1) of the Court of Appeal Rules requires the memorandum of appeal to set forth the grounds of objection to the decision appealed against, specifying the points alleged to have been wrongly decided. The grounds here instead revisited the earlier rulings of 22nd October 2007 and 5th December 2007, against which no appeal had been lodged. Grounds extraneous to the impugned decision cannot sustain an appeal.

p. 4
02

Functus officio and abuse of process where a party seeks to re-litigate an order through a purported inherent-powers application

Holding

Once the review application had been dismissed, the superior court was functus officio; the subsequent application to set aside the orders was either a second review or an appeal, both impermissible, and was a gross abuse of process.

Reasoning

The suit had been withdrawn under Order XXIV Rule 1 CP Rules and the Deputy Registrar recorded withdrawal with costs. The ruling upholding the preliminary objection was not appealed; instead the appellant sought review, which was dismissed. The Civil Procedure Rules do not permit a second review application, and a court cannot sit on appeal against its own decision, so the inherent-jurisdiction application was not maintainable and the superior court's dismissal of it was correct.

p. 4

Legal principles established

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  • A memorandum of appeal must, per Rule 84(1) of the Court of Appeal Rules, set forth grounds of objection to the decision appealed against; grounds that do not relate to that decision render the appeal incompetent.
  • Where a suit has been withdrawn under Order XXIV Rule 1 CP Rules and an application for review of the resulting order has been dismissed, the superior court's jurisdiction is exhausted; a further application invoking inherent jurisdiction to set aside the orders is in substance a second review or an appeal and is not maintainable.
  • A court cannot sit on appeal against its own decision.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

Authorities

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Legislation

  • The Mortgages (Special Provisions) ActCap 304
  • Transfer of Property (Amendment) ActSection 69(1)
  • Civil Procedure RulesOrder XXIV Rule 1
  • Civil Procedure RulesOrder XLIV Rule 1(1)
  • Civil Procedure RulesOrder XLIV Rule 7
  • Civil Procedure RulesOrder LXIV Rule 1(1)
  • Civil Procedure RulesOrder XLII
  • Court of Appeal RulesRule 84(1)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1203 of 2006 (ruling dated 11th April, 2008)
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (Rule 84(1) governing memoranda of appeal); appeal from the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "George Gikubu Mbuthia v Housing Finance Company Ltd & 2 others [2009] KECA 366 (KLR)", Case Analysis (2009). Civil Appeal 90 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/366/eng@2009-03-20

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