Swai v Kenya Breweries Limited
The bottom line
#Kenya's Court of Appeal confirmed that if you disagree with a judge's interpretation of the law, you must appeal — you cannot ask the same court to review its own decision.
What this practically means
#Executive summary
#Key legal issues
#Whether an error of law by the court that made the security-for-costs order constituted a ground for review
No. An erroneous view of law is a ground for appeal, not review; allowing review on such grounds would set a dangerous precedent and expose decisions to attack in courts that are functus officio.
The Court held that the High Court is presumed to know the law, so its failure to apply the Treaty or case-law was neither an error apparent on the face of the record nor new and important matter. The three limbs of Order 44 rule 1 relate to issues of fact. Where a court is not well served, an error of law predicated on correct facts can only be challenged on appeal, not by review.
Whether failure of counsel to cite the Treaty and the Shah v Manurama authority amounted to discovery of new and important matter or a sufficient reason for review
No. The authorities were in existence at the time of the original application; due diligence under rule 1 refers to discovery of facts, not ascertainment of existing law.
Lesiit, J. had found that the appellant and his advocate gave no cogent explanation for not citing the two authorities and had not exercised due diligence. The Court of Appeal held that this reasoning was a misdirection, but that the misdirection did not assist the appellant because counsel's failure to cite relevant law is not a ground under rule 1 of Order 44, which relates to issues of fact.
Whether the dismissal of the appellant's suit for failure to provide security for costs was justified
Yes. Under Order 26 rule 5(1), where security is not given within the time ordered, the court shall upon application dismiss the suit; the appellant had not proved sufficient cause preventing him from giving security.
The security order of 10.12.2004 was never appealed. The appellant failed to comply for over 3½ years. His review application failed, and under rule 5(1) of Order 26 the court was bound to dismiss the suit on the respondent's application. Although the trial Judge's reasoning was flawed, the Court found the decision itself correct.
Legal principles established
#- An erroneous conclusion of law or a failure by a court to apply the law correctly is a ground for appeal but not a ground for review under Order 44/45 rule 1 or Section 80 of the Civil Procedure Act.
- The three limbs of Order 44 (now Order 45) rule 1, including due diligence in discovery of new and important matter, relate to issues of fact, not to ascertainment of existing law.
- The words 'for any sufficient reason' in the review provision need not be analogous with the other specified grounds, as that would be a clog on the unfettered right conferred by Section 80 of the Civil Procedure Act.
- Failure by counsel to know or cite relevant authorities that would have impacted a court's decision cannot be blamed on a litigant or his counsel; an error of law in a decision predicated on correct facts can be challenged on appeal.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court
- HCCC No. 1190 of 1994
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the High Court (ruling in HCCC No. 1190 of 1994); no specific constitutional provision invoked for the appeal itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swai v Kenya Breweries Limited", Case Analysis (2014). Civil Appeal 275 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/883/eng@2014-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.