Ryce Motors Limited v Jonathan Kiprono Ruto & another [2016] KECA 135 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that losing parties cannot fix complaints about a judgment through review; errors of law must be challenged by appeal.
What this practically means
#Executive summary
#Key legal issues
#Right of appeal against a review order
An appeal lies as of right from an order of review under section 75 of the Civil Procedure Act and Order XLII rule 1(1)(aa) of the Civil Procedure Rules; the respondent's contention that a review order is unappealable was wrong.
The Court examined section 75 of the Civil Procedure Act, which allows appeals as of right from orders made under the rules from which an appeal is expressly allowed, and Order XLII rule 1(1)(aa), which expressly lists Order XLIV rule 3 (application for review). It concluded the appeal was properly before it and that counsel for the 1st respondent was wrong to submit otherwise.
Whether the Judge erred in declining to review the judgment of 29th May 2002
Warsame J did not err; the discretion was exercised judiciously and there was no error apparent on the face of the record justifying review.
Review is discretionary and governed by section 80 of the Civil Procedure Act and Order XLIV of the (repealed) Civil Procedure Rules. The applicant had to show discovery of new matter, an error apparent on the face of the record, or other sufficient reason, without unreasonable delay. The alleged defect in delivery of the judgment was a point of law for appeal, not an error on the face of the record, and the validity of the judgment had already been confirmed by Osiemo J and addressed by Kasango and Azangalala JJ. The appellant had even filed a notice of appeal against Osiemo J's judgment.
Scope of first appeal
On a first appeal the Court re-evaluates and re-assesses the evidence on the record and draws its own conclusions, while making allowance for not having seen or heard the witnesses.
Relying on Kenya Ports Authority v. Kustron (Kenya) Limited, the Court restated that its primary role as a first appellate court is to re-evaluate, re-assess and re-analyse the evidence and determine whether the conclusions of the trial Judge are correct, giving reasons, while ruling only on the evidence on record.
Legal principles established
#- An appeal lies as of right from an order made on an application for review under Order XLIV rule 3 of the Civil Procedure Rules, read with section 75 of the Civil Procedure Act.
- A wrong exposition or misconstruction of the law is not a ground for review; it is a ground of appeal, as such an error is not an error apparent on the face of the record.
- An appellate court will not interfere with the exercise of a single Judge's discretion on review unless the Judge misdirected himself or was clearly wrong, resulting in misjustice.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the 1st respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 559 of 1995
- Jurisdiction invoked
- First appeal from the High Court under section 75 of the Civil Procedure Act, Cap 21 (appeal from an order of review, Order XLII rule 1(1)(aa) of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Geoffrey Sheridan Ouma v Public Service Commission of Kenya [2019] KECA 861 (KLR)[2019] KECA 861 (KLR)8 Mar 2019applied
Cite this brief
#Cite this brief
Caselaw, "Ryce Motors Limited v Jonathan Kiprono Ruto & another [2016] KECA 135 (KLR)", Case Analysis (2016). Civil Appeal No. 271 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/135/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.