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Court of AppealDismissedCivil Appeal No. 23 of 2014· [2015] KECA 313 (KLR)

Jameny Mudaki Asava v Brown Otengo Asava & another [2015] KECA 313 (KLR)

Court of Appeal
19 October 2015
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,846 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that if you disagree with how a court decided your case, you must appeal rather than seek review.

What this practically means

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Executive summary

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This is an appeal from the High Court of Kenya at Kakamega (Chitembwe, J.) in Succession Cause No. 278 of 2007 concerning the estate of Kenzia Dalitsu alias Ketsia Dalidzu, whose sole asset was L.R. No. Kakamega/Mbale/532. The appellant, who had earlier obtained and then lost letters of administration, challenged the High Court's distribution of the plot equally among the three brothers. He sought review of the ruling of 10th May 2012, contending that the respondents had already received larger parcels from their father's estate and that, as the last born, the disputed plot was intended for him exclusively. The High Court dismissed the review application for want of new information, and the appellant appealed on four grounds. The Court of Appeal, in a unanimous judgment of the bench (Musinga, Gatembu Kairu and Murgor, JJ A), restated the Order 45 thresholds for review: discovery of new and important matter, error apparent on the face of the record, or other sufficient reasons, and application without delay. It held that the information relied upon was available to the court at the time of its decision and was not fresh or important evidence, and that no obvious or unambiguous error on the record had been demonstrated, as the equitable-distribution complaint had never been canvassed below. Relying on Origo & Another v Mungala, the Court reiterated that an erroneous conclusion of law or evidence is a ground for appeal, not review. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the application for review met the threshold in Order 45 of the Civil Procedure Rules

Holding

It did not; the information relied on was available at the time of the decision and no error apparent on the face of the record was demonstrated, so the High Court rightly dismissed the review.

Reasoning

Order 45 permits review only on discovery of new and important matter not known despite due diligence, an error apparent on the face of the record, or other sufficient reasons, and without delay. The appellant's claim that he, as last born, was entitled to the plot, and the facts about prior allocations from the father's estate, were all before or available to the court when it ruled. An alleged equitable maldistribution of acreage was never canvassed and disclosed no obvious or unambiguous error. The threshold for review was therefore not met.

p. 4
02

Whether dissatisfaction with the High Court's distribution of the estate is a ground for review

Holding

No; dissatisfaction with the correctness of a distribution decision is a challenge to that decision and must be pursued by appeal, not review.

Reasoning

The appellant's real grievance was with the manner in which the High Court distributed the disputed plot. That is an attack on the merits of the decision of 10th May 2012, not a reviewable irregularity. Adopting the reasoning in Origo & Another v Mungala, an erroneous conclusion of law or evidence is a ground for appeal, not review, and a party who chooses review over appeal proceeds in the wrong direction and reaches a dead end.

p. 4

Legal principles established

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  • An erroneous conclusion of law or evidence is a ground for appeal, not a ground for review; a party who opts for review instead of appeal pursues the wrong remedy.
  • Review under Order 45 of the Civil Procedure Rules requires discovery of new and important matter, an error apparent on the face of the record or other sufficient reasons, and the application must be made without delay.
  • Material that was available to the court and within the applicant's knowledge at the time of the decision is not 'new and important matter' for purposes of review.

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

  • Civil Procedure RulesOrder 45

Cases cited (1)

  • Origo & Another vs Mungala
    [2005] 2 KLR 307
On appeal from
High Court of Kenya at Kakamega
Succession Cause No. 278 of 2007
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Court of Appeal's appellate jurisdiction in civil appeals; specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (17)

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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, "Jameny Mudaki Asava v Brown Otengo Asava & another [2015] KECA 313 (KLR)", Case Analysis (2015). Civil Appeal No. 23 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/313/eng@2015-10-19

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