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Court of AppealDismissedCivil Appeal No. 92 of 2008· [2014] KECA 623 (KLR)

Anthony Gachara Ayub v Francis Mahinda Thinwa [2014] KECA 623 (KLR)

Court of Appeal
13 May 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeOTOtieno-Odek
2,220 words in judgment
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The bottom line

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The Court of Appeal confirmed that review applications in Kenya must be filed promptly, with a clear error on the record, or you may lose your appeal rights entirely.

What this practically means

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Executive summary

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The appellant and respondent are brothers disputing Land Parcel Magutu/Gatheru/17, which the respondent claimed was held in trust for both in equal shares. Judgment was entered for the respondent by J.V.J. Juma, J. on 14th May, 2002, declaring a trust and ordering sub-division with 4 acres to the respondent. The appellant sought review of that judgment before Makhandia, J., alleging an error apparent on the face of the record in that the trial judge had confused William Githaiga with Githaiga s/o Muthiru. The review court acknowledged the confusion but nonetheless dismissed the application because it was filed over three years after judgment, the delay was inordinate and unexplained, and misconstruing evidence is not an error apparent on the face of the record - that is a matter for appeal. The appellant appealed to the Court of Appeal at Nyeri (Visram, Koome and Otieno-Odek, JJ.A.), the respondent being absent though served. Counsel informed the court that the decree had been executed and the suit property sold and transferred to a third party not represented in the proceedings. The Court held that a party who elects review loses the right of appeal; that the application did not meet the Order 45 rule 1(1) grounds; that the three-year delay was inordinate and taking a wrong legal step does not excuse it; and that no error apparent on the face of the record had been established under the Muyodi test. The court declined to make orders in vain against an unrepresented third party. The appeal was dismissed with no order as to costs.

Key legal issues

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01

Whether the High Court judge erred in declining to review the judgment of 14th May, 2002

Holding

The appeal was dismissed; the Judge correctly exercised his discretion in declining review because the applicant failed to meet the Order 45 rule 1(1) grounds, the three-year delay was inordinate and unexplained, and there was no error apparent on the face of the record.

Reasoning

The court applied the Mbogo v Shah standard for interfering with discretionary decisions and the Muyodi test for review. An application for review must be promptly filed and based on discovery of new matter, an error apparent on the face of the record, or other sufficient reason. Misconstruing evidence is not an error apparent on the face of the record; that is a matter for appeal. The appellant's failure to obtain extension of time to appeal did not excuse the delay. The property having been sold to a third party, the court could not make orders in vain.

p. 4
02

Whether the failure to distinguish between William Githaiga and Githaiga s/o Muthiru amounted to an error apparent on the face of the record

Holding

It did not. Misconstruing evidence cannot amount to a mistake or error apparent on the face of the record; identifying such an error requires evaluating evidence, which is a function of an appellate court, not a review court.

Reasoning

The review court below found the trial judge had treated two different persons as one, but held that establishing such a misapprehension of evidence requires analysis and evaluation of the evidence. That is appellate territory. The Court of Appeal endorsed this, holding that where a view adopted on the original record is a possible one, it cannot be an error apparent on the face of the record even if another view was possible.

p. 2

Legal principles established

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  • A party who chooses to proceed by way of review loses the right of appeal against the judgment sought to be reviewed.
  • An appellate court will not interfere with a single judge's exercise of discretion on review unless the judge misdirected himself or was clearly wrong resulting in misjustice.
  • An error apparent on the face of the record must be one that stares one in the face and admits of no two opinions; a mere erroneous decision or an error established by a long drawn process of reasoning is not a ground for review.
  • When a party takes a wrong legal step in prosecution of its case, time continues to run and such a wrong step is not an excuse for inordinate delay in seeking review.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActOrder 45
  • Civil Procedure Rules, 2010Order 45 rule 1(1)
  • Civil Procedure RulesOrder XLV, Rule 1

Cases cited (5)

  • Mbogo & Another vs Shah
    (1968) E.A. 93
  • Michael Mungai v Ford Kenya Elections & Nominations Board & Ors.
    (2006) eKLR
  • Nyamogo & Nyamogo Advocates v Kago
    (2001) 2 EA 173
  • Muyodi v Industrial & Commercial Development Corporation & Anor.
    (2006) 1 EA 243
  • Draft and Develop Engineers Limited v National Water Conservation and Pipeline Corporation
    Civil Case No. 11 of 2011
On appeal from
High Court at Nyeri
HCCC No. 104 of 1989
Jurisdiction invoked
First appellate jurisdiction over a ruling of the High Court (appeal against the Ruling of the High Court at Nyeri in HCCC No. 104 of 1989)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Anthony Gachara Ayub v Francis Mahinda Thinwa [2014] KECA 623 (KLR)", Case Analysis (2014). Civil Appeal No. 92 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/623/eng@2014-05-13

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