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Court of AppealDismissedCivil Appeal 244 of 2004

HAROLD KIDEM MGANGA & another v CONSTANCE MWAI MTOTO [2010] KECA 372 (KLR)

Court of Appeal of Kenya
12 March 2010
Philip Kiptoo TunoiP.K. TunoiEOE. O. O'KubasuAVAlnashir Visram
2,285 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that you cannot use a review application to re-litigate issues like service of summons that fall outside review grounds.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Tunoi, O'Kubasu and Visram, JJA) dismissed this first appeal against a High Court judgment of Etyang', J of 29th July 2003, which had dismissed the appellants' appeal from the refusal of their application for review. The underlying claim arose from a road traffic accident of 31st August 1998 in which the respondent, a fare-paying passenger in the first appellant's vehicle, was injured; interlocutory and then formal-proof judgments were entered against the first and second appellants for general and special damages, the Attorney General (third defendant) being absolved because the respondent's evidence showed his vehicle was stationary. The appellants' attempts to set aside the judgment and to obtain review under Order XLIV rule 1 of the Civil Procedure Rules failed. The Court of Appeal held that, the matter having come up on a review application, the issues of service of summons and the Attorney General's liability were beyond the scope of review; in any event service on both appellants was clearly effected, and the Magistrate was entitled to absolve the Attorney General at formal proof. Grounds 5, 7 and 8 were abandoned before the Court. The appeal was found to be without merit and dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal before the High Court, being an appeal from a dismissal of an application for review, could re-open issues of service of summons and the absolution of the Attorney General
  2. 2.Whether the appellants demonstrated grounds for review under Order XLIV rule 1 of the Civil Procedure Rules
  3. 3.Whether service of summons to enter appearance on both appellants was effective
  4. 4.Whether the trial Magistrate was entitled to absolve the Attorney General from liability at formal proof

Key legal issues

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01

Scope of an application for review under Order XLIV rule 1

Holding

Only the statutory grounds for review are available; issues outside those grounds cannot be raised on appeal from a review ruling.

Reasoning

The Court set out the full text of Order XLIV rule 1 and held that the appellants were required to demonstrate discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason. Having considered the history of the matter, the Court found the application for review was properly rejected both by the Magistrate's Court and by the High Court on appeal. The issues of service and the Attorney General's liability were held to be beyond review.

p. 5
02

Effective service of summons on the second appellant through the first

Holding

Service on the first appellant for and on behalf of his employee (the second appellant), whose course of employment gave rise to the claim, was sufficient and effective - affirmed.

Reasoning

Although the Court held the service issue was beyond review, it went on to consider it and found clear evidence that summons had been effected on both appellants. It endorsed the High Court's finding, quoting Etyang', J, that service on the first appellant on behalf of his employee in whose course of employment the cause of action arose was sufficient and effective service.

p. 5
03

Absolution of the Attorney General from liability at formal proof

Holding

The trial Magistrate was entitled to absolve the Attorney General where the plaintiff's evidence did not implicate the Government vehicle, which was stationary; affirmed.

Reasoning

The trial Magistrate, after formal proof, found the plaintiff's evidence put no blame on the third defendant whose vehicle was stationary on the side of the road. The High Court and this Court held there was no proof the Attorney General had been served before interlocutory judgment, so the default judgment bound only the first and second appellants, and absolution occasioned the appellants no prejudice, the claim having been settled by the insurance company.

p. 5

Legal principles established

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  • An applicant for review bears the burden of establishing one of the grounds in Order XLIV rule 1: discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason.
  • Issues falling outside the scope of an application for review - such as the regularity of service and the liability of a party absolved at formal proof - cannot be re-litigated through a review or an appeal from a review ruling.

Court orders

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  1. 1.The appeal be and is hereby dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority
EO
majority
AV
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.A. No. 95 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court exercising appellate jurisdiction (per the Court of Appeal Act; no specific provision quoted in the judgment)

Relief refused

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Setting aside or review of the default judgment entered against the appellants

The appellants failed to demonstrate any of the grounds for review under Order XLIV rule 1, and the Judge below correctly rejected their appeal

p. 5

Re-opening the issues of service of summons and liability of the Attorney General

Those issues were beyond the scope of an application for review; and in any event service was proved and the absolution of the Attorney General was justified on the evidence

p. 5

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly we order that the appeal be and is hereby dismissed with costs to the respondent.
p. 5Final orders - dismissal of appeal with costs
Since the application was for review it was upon the appellants to show that there had been the discovery of new and important matter or evidence which was not within their knowledge or could not be produced by them at the time the decision was made.
p. 5Burden on an applicant for review
the issues relating to service of the summons to enter appearance and the fact that the Attorney General had been absolved from liability were beyond an application for review under Order XLIV of the Civil Procedure Rules.
p. 5Limits of review jurisdiction
I hold that service of court process on the first appellant for and on behalf of his employee (second appellant) in the circumstances of this case where the cause of action arose in the said employee’s course of employment was sufficient and effective service.
p. 2Service on employee through employer (High Court finding affirmed)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "HAROLD KIDEM MGANGA & another v CONSTANCE MWAI MTOTO [2010] KECA 372 (KLR)", Case Analysis (2010). Civil Appeal 244 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/372/eng@2010-03-12

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