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Court of AppealDismissedCivil Appeal No. 210 of 2014· [2016] KECA 100 (KLR)

Peter Kirika Githaiga & another v Betty Rashid [2016] KECA 100 (KLR)

Court of Appeal of Kenya
25 November 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'Inoti
3,286 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 courts won't review rulings just to help parties gather evidence, but a review application isn't defective merely for lacking an annexed order.

What this practically means

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Executive summary

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This Court of Appeal judgment disposes of the appellants' challenge to a ruling of Gacheru, J. refusing to review her earlier order declining to compel the Directorate of Criminal Investigations to release a Document Examiner's report concerning the respondent's certificate of allotment to suit premises at Utawala. The dispute concerned rival claims of purchase of Plot No. A14 within L.R. No. 6845/124. The Court framed the appeal around the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the limited scope of appellate interference with discretionary decisions. Relying on United India Insurance and other authorities, the Court held that the trial judge had exercised her discretion judiciously and committed no misdirection. It rejected the appellants' argument that the overriding objective, or their inability to obtain a report held by the D.C.I, amounted to 'any other sufficient reason' for review, holding that a court should not descend into the arena by fishing for or gathering evidence for a party, and that the Document Examiner could simply be called as a witness. On the question whether failure to extract and annex the order sought to be reviewed is fatal, the Court resolved a divergence in High Court authority by endorsing Sadrudin Kurji v Shalimar and Rose Njeri Muiruri: since Order 45(1) does not expressly require annexation, an application in which the applicant can point to the part of the ruling complained of is not fatally defective. Save for that clarification, the Court found the appeal devoid of merit and dismissed it with no order as to costs.

Key legal issues

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01

Appellate interference with discretionary decisions

Holding

Whether to allow review is an exercise of discretion by the trial court, and an appellate court will be slow to interfere absent misdirection in law, misapprehension of facts, wrong considerations, or a plainly wrong decision.

Reasoning

The Court adopted the classic principles in United India Insurance and Madan JA's formulation, and the Nigerian authority that the discretion belongs to the trial court, not the appellate court. It found that Gacheru J considered the relevant factors, exercised her discretion judiciously, and that no misdirection or plainly wrong conclusion was discernible.

p. 4
02

'Any other sufficient reason' for review

Holding

Order 45 anticipates other sufficient reasons beyond error on the face of the record or discovery of new matter, but the inability to obtain a third party's report and the overriding objective do not qualify.

Reasoning

The Court accepted that other sufficient reasons need not be analogous with the enumerated grounds, but held that the appellants could call the Document Examiner as a witness; compelling the D.C.I to produce the report would amount to the court fishing for evidence, and the overriding objective is a case-management tool that cannot prejudice the other party.

p. 4
03

Annexing the order sought to be reviewed

Holding

Order 45(1) does not expressly require the order or decree to be annexed; where the applicant can point to the part of the ruling or judgment complained of, the application is not fatally defective.

Reasoning

The Court noted the High Court's unanimity that attachment is mandatory, but preferred the contrary position in Sadrudin Kurji v Shalimar and Rose Njeri Muiruri, reasoning that the decision is on the court file and attachment is at times only necessary for clarity as to the orders complained of.

p. 5

Legal principles established

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  • The Court of Appeal will not interfere with a discretionary decision of the High Court unless the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong.
  • Failure to extract and annex the order or decree sought to be reviewed is not, of itself, fatal to an application for review where the applicant can direct the court to the part of the ruling or judgment complained of.
  • The overriding objective is a case-management principle that cannot, per se, constitute 'any other sufficient reason' for review, nor can it be used to fish for evidence against an adverse party.
  • A party whose evidence is held by a third party should call that third party as a witness rather than seek a review; a trial court should not descend into the arena by gathering evidence for a party.

Court orders

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  1. 1.The appeal is dismissed with no order as to costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.S. No. 529 of 2013
Jurisdiction invoked
First appeal from the High Court exercising appellate/review jurisdiction under the Civil Procedure Act and Rules (Order 45 review ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Peter Kirika Githaiga & another v Betty Rashid [2016] KECA 100 (KLR)", Case Analysis (2016). Civil Appeal No. 210 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/100/eng@2016-11-25

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