Christopher Kagema Gichuhi v Livingstone Gitome Kohiguka [2016] KECA 573 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that review is not appeal: you cannot revive a lost case using facts you already knew about.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge was justified in dismissing the application seeking review of his earlier ruling of 19th March 2007
Key legal issues
#Whether the requirements for review under the relevant provisions were met
They were not: the appellant was a party to the proceedings and relied on facts and evidence within his knowledge at the time of the ruling, so review could not succeed.
The Court adopted the test in Mulembe Farm Limited v John B. Masika: an applicant must show new and important matter or evidence not obtainable with due diligence, or an error apparent on the face of the record. Review is discretionary and circumscribed, invoked to prevent injustice or hardship. Here the alleged non-disclosure of the existence of two separate parcels was evidence within the appellant's knowledge when the 19th March 2007 ruling was made; he did not even seek an adjournment or complain of ambush. The Judge rightly dismissed the review application.
Whether this Court could entertain the challenge to the finding that the High Court lacked jurisdiction over trespass claims
It could not: that finding was in the ruling of 19th March 2007, which was never appealed against; only the ruling of 13th December 2007 dismissing the review was under appeal.
The appellant's ground attacking the High Court's jurisdiction over trespass under section 3 of the Land Disputes Tribunal Act went to the earlier ruling of 19th March 2007. The respondent correctly submitted that only the refusal of review was properly before the Court. Since no appeal was lodged against the 19th March 2007 ruling, the Court had no jurisdiction to revisit the striking out of the plaint or the jurisdictional finding, and confined itself to the review question.
Legal principles established
#- The jurisdiction to review is narrower than appellate jurisdiction; an applicant for review must show new and important matter or evidence not within his knowledge despite due diligence, or an error apparent on the face of the record, and cannot rely on facts and evidence that were previously within his knowledge.
- An appeal against a ruling dismissing a review application does not open up the substantive ruling sought to be reviewed; where no appeal is filed against that substantive ruling, the court cannot disturb it.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 412 of 2002
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court (appeal as of right under the Court's appellate jurisdiction; no specific provision cited in the judgment)
Relief refused
#Setting aside the ruling of 19th March 2007, reinstatement of the plaint dated 7th March 2002, and a finding that the High Court had jurisdiction over trespass claims
The appeal was against the ruling of 13th December 2007 dismissing the review application, not against the ruling of 19th March 2007 on jurisdiction; and the appellant failed to meet the requirements for review as the alleged new facts were within his knowledge.
Costs
The appeal was dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Based on the above reasons, we find that this appeal has no merit and it is dismissed with costs.
The power of review is not the same as the power exercisable on appeal. That is why the jurisdiction of the court in review is circumscribed.
For an application for review to succeed, the evidence must not only be new but the applicant must prove that he did not have the evidence or knowledge in his possession at the time of hearing and could not have obtained it at the time.
In view of the foregoing, we are in agreement with the ruling of the learned Judge and find no reason to interfere with the same.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Kagema Gichuhi v Livingstone Gitome Kohiguka [2016] KECA 573 (KLR)", Case Analysis (2016). Civil Appeal No. 290 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/573/eng@2016-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.