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Court of AppealDismissedCivil Appeal No. 230 of 2004

Mulembe Farm Limited & another v John B. Masika & 3 others [2011] KECA 334 (KLR)

Court of Appeal of Kenya
25 March 2011
ROR.S.C. OmoloSBS.E.O. BosireAVAlnashir Visram
2,800 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that review is for narrow, specific grounds only—if you disagree with a judgment, appeal it without delay instead.

What this practically means

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Executive summary

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This is a judgment of the Court of Appeal at Eldoret (Omolo, Bosire and Visram JJ.A) dismissing Civil Appeal No. 230 of 2004 against the ruling of Nambuye J. of 18th November 2002, which had refused the appellants' application to review the judgment of Tunoi J. of 9th October 1996 in Kitale H.C.C.C. No. 29 of 1997. The underlying dispute concerned the allocation of acreages in L.R. No. 9082/1, Trans Nzoia, purchased by 16 contributors and registered in the name of the 1st appellant company. Tunoi J. awarded the respondents acreages based on their contributions at a yardstick of Kshs.340/= per acre; the appellants did not appeal, but over two years later sought review, relying partly on Eldoret H.C.C.C. No. 2 of 1983, a compromise suit to which the respondents were not parties, and on the company's liabilities. The Court of Appeal held that the review jurisdiction is distinct from and narrower than the appellate power: an applicant must establish new and important matter, an error apparent on the face of the record, or any other sufficient reason, none of which was met. The matters raised were neither new nor errors apparent on the record; grounds attacking the correctness of a judgment belong to an appeal. Notably, the Court found Nambuye J. herself exceeded her jurisdiction in purporting to correct the yardstick error, since that required consideration of the evidence. Complaints of delay in delivering both the judgment and the ruling failed for lack of demonstrated prejudice. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether Nambuye J. erred in declining to review the judgment of Tunoi J. on the basis of Eldoret High Court Civil Case No. 2 of 1983
  2. 2.Whether the trial judge's use of Kshs.340/= per acre as the yardstick, rather than Kshs.335/=, was an error apparent on the face of the record warranting review
  3. 3.Whether the 1st appellant's liabilities ought to have been shared among all shareholders and thus taken into account in determining each shareholder's acreage
  4. 4.Whether the delay in delivering the judgment of Tunoi J. and the ruling of Nambuye J. occasioned a failure of justice

Key legal issues

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01

The limits of the review jurisdiction as distinct from the appellate jurisdiction

Holding

Review is discretionary and circumscribed; a party must place material before the court satisfying one of the three statutory grounds, and grounds that amount to challenging the correctness of a judgment are for appeal.

Reasoning

The court set out the three grounds for review under Order XLIV: new and important matter or evidence not discoverable with due diligence; mistake or error apparent on the face of the record; or any other sufficient reason. The appellants' complaints about the 1983 Eldoret case and the company's liabilities were matters known to them and litigated or litigable at trial. The appeal was properly against a ruling on review, so the grounds framed as if challenging the judgment on appeal were misconceived.

p. 4
02

Whether the yardstick error of Kshs.340/= per acre was an error apparent on the face of the record

Holding

It was not; establishing it required consideration of the evidence, and the reviewing judge exceeded her jurisdiction by purporting to correct it.

Reasoning

An error apparent on the face of the record must be self-evident without examining evidence. Determining whether the trial judge erred in using Kshs.340/= instead of Kshs.335/= required a comparison with the evidence. Nambuye J. nonetheless reviewed the yardstick, though the correction made no difference to the acreages. The Court of Appeal affirmed the dismissal of the review while noting she had gone beyond her powers in doing so.

p. 4
03

Whether delay in delivering the judgment and the ruling occasioned a failure of justice

Holding

No; the delays were explainable by the trial judge's transfer and the appellants showed no prejudice.

Reasoning

The judgment was not undelivered for seven years as alleged; it remained undelivered for about a year, apparently because the trial judge went on transfer. The ruling was delayed by about a year. Since the appellants could not demonstrate how the delay prejudiced them, no miscarriage of justice was established and the complaint failed.

p. 5

Legal principles established

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  • Review is a discretionary remedy distinct from appeal; the review jurisdiction is circumscribed and an applicant must bring himself within one of the statutory grounds of new and important matter, error apparent on the face of the record, or any other sufficient reason.
  • A ground of appeal that is an invitation to re-evaluate the correctness of a judgment belongs to an appeal, not to a review application; matters raised or knowable at trial cannot found review.
  • An error requiring consideration of evidence to establish is not an error apparent on the face of the record and a reviewing judge exceeds her jurisdiction in purporting to correct it.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondents

The bench

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

RO
majority
SB
majority
AV
majority
On appeal from
High Court of Kenya at Eldoret (Nambuye J.)
Kitale H.C.C.C. No. 29 of 1997
Jurisdiction invoked
First appellate/second appeal from the High Court ruling on a review application under Order XLIV rules 1 and 2 of the Civil Procedure Rules and Sections 3A and 80 of the Civil Procedure Act

Relief refused

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Review of the judgment of Tunoi J. to work out acreages, take account of company debts, and harmonise the judgment with Eldoret H.C.C.C. No. 2 of 1983 and Kitale H.C.C.A. No. 37 of 1997

The appellants did not satisfy any of the three grounds for review; the matters raised were neither new nor errors on the face of the record and were appropriate for appeal, not review

p. 4

Correction of the yardstick of Kshs.340/= per acre used by the trial judge

The error was not apparent on the face of the record and required consideration of the evidence; Nambuye J. exceeded her review jurisdiction in purporting to correct it

p. 4

Relief on the ground of delay in delivery of the judgment and ruling

The delays were explainable and the appellants did not demonstrate prejudice

p. 5

Costs

The appeal was dismissed with costs to the respondents.

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.

The power of review is not the same as the power exercisable on appeal. That is why the jurisdiction of the court in review is circumscribed.
p. 4Distinction between review and appeal
The court in a review is called upon to exercise a discretion in a situation where, if the power is not exercised injustice or hardship will result
p. 4Purpose of the review jurisdiction
Clearly Nambuye, J. exceeded her jurisdiction when she took steps to correct that error more so because the correction did not alter Tunoi J.'s final decision.
p. 4Limits on a reviewing judge's power to correct errors requiring evidence
In the result, we are satisfied that this appeal has no merit and it is accordingly dismissed with costs.
p. 5Final orders - disposition

Issues in the judgment

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minor

The memorandum of appeal refers to Simeon Musungu as '2nd respondent' in one passage while he is the 2nd appellant; the judgment states 'Mulembe Farm Limited (1st appellant) and Simeon Musungu (2nd respondent)'.

minor

The judgment of Tunoi J. bears a different date from its actual delivery date, as noted by the court itself.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Mulembe Farm Limited & another v John B. Masika & 3 others [2011] KECA 334 (KLR)", Case Analysis (2011). Civil Appeal No. 230 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/334/eng@2011-03-25

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