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Court of AppealDismissedCivil Appeal No. 331 of 2014· [2017] KECA 56 (KLR)

Nakuru Industries Limited v Sirbrook (K) Limited [2017] KECA 56 (KLR)

Court of Appeal of Kenya
22 November 2017
GKG. B. M. KariukiFSF. SichaleSKS. ole Kantai
2,668 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that you cannot use a review to reargue a judge's decision; if you disagree with a ruling, your remedy is an appeal.

What this practically means

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Executive summary

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The appellant, Nakuru Industries Limited, appealed against the High Court at Nakuru (Emukule, J.) ruling of 28th March 2014 dismissing its Chamber Summons application seeking review of the orders of 17th December 2013, by which the court had granted a conditional 30-day stay of execution on deposit of Kshs 4,152,000/-. The Court of Appeal (Kariuki, Sichale and ole Kantai, JJA) heard arguments on six of thirteen grounds of appeal, the rest having been withdrawn. The appeal was opposed on the basis that the review application was misconceived: it raised no ground under Section 80 of the Civil Procedure Act and Order 45 rule 1(1) of the Civil Procedure Rules, and its alleged errors were mere criticisms of the judge's decision which could only be pursued on appeal. The Court agreed, holding that the appellant alleged no discovery of new and important matter, no error apparent on the face of the record, and nothing constituting 'any other sufficient reason'; its grievances were 'the stuff expected in an appeal and not in a review'. A judicial officer cannot be asked to sit on appeal on his own decision. Relying on National Bank of Kenya Ltd v Ndungu Njau and Francis Origo v Jacob Kumali Mungala, the Court affirmed that an erroneous conclusion of law or evidence is a ground for appeal, not review, and that a reviewable error must be self-evident. Although the review application had been brought by Chamber Summons rather than Notice of Motion, it was dismissed for want of merit, not procedural technicality. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether alleged mistakes and errors in a ruling can ground a review under Order 45 rule 1(1)

Holding

No. The matters raised were grievances about alleged errors by the judge in his decision and fall outside the ambit of Order 45 rule 1(1); they could not constitute 'any other sufficient reason'.

Reasoning

Review is governed by Section 80 of the Civil Procedure Act and Order 45 rule 1(1), whose grounds are discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason. The appellant alleged no new matter and identified no self-evident error; its complaints were criticisms of the ruling that belonged in an appeal, which it did not pursue. Requiring a judge to rehear arguments that his decision was wrong would amount to the court sitting on appeal on its own decision.

p. 3
02

Procedural irregularity of the review application by Chamber Summons instead of Notice of Motion

Holding

The application was irregular for being brought by Chamber Summons rather than Notice of Motion as required by Order 45, but it was dismissed for want of merit, not on procedural technicality.

Reasoning

The High Court noted the application did not comply with the Civil Procedure Rules as it was by Chamber Summons instead of Notice of Motion. Both parties accepted this before the Court of Appeal. Nevertheless the dismissal rested on the merits: the applicant failed to establish any of the statutory grounds for review, so the procedural defect was not the operative basis of the decision under appeal.

p. 1

Legal principles established

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  • Criticism of a judge's decision is not a ground for review; a litigant aggrieved by a decision where an appeal lies must pursue the appeal, and review is confined to the grounds in Order 45 rule 1(1).
  • A court cannot sit on appeal on its own decision; alleged errors in a ruling are matters for appeal, not review.
  • An error or omission ground for review must be self-evident; an erroneous conclusion of law or evidence is a ground for appeal, not review.

Court orders

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  1. 1.Appeal dismissed.
  2. 2.Costs of the appeal awarded to the respondent.

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSection 80
  • Civil Procedure Rules 2010Order 42 rule 6(2)(b)
  • Civil Procedure Rules 2010Order 42 rule 6(2)
  • Civil Procedure Rules 2010Order 45 rule 1(1)
  • Civil Procedure Rules 2010Order 45 rule 1(2)
  • Civil Procedure Rules 2010Order 45 rule 3(1) & (2)
  • Civil Procedure Rules (former)Order XLIV rule 1(1)
  • Rules of this Court (Court of Appeal Rules)Rule 75

Cases cited (2)

  • National Bank of Kenya Ltd vs. Ndungu Njau
    Civil Appeal No. 211 of 1996 (unreported)
  • Francis Origo & Another vs. Jacob Kumali Mungala
    C. A. Civil Appeal No. 149 of 2001
On appeal from
High Court of Kenya at Nakuru
HCCC No. 277 of 2009
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Court of Appeal procedure (notice of appeal under Rule 75 of the Court of Appeal Rules against a ruling of the High Court); no specific constitutional provision cited.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nakuru Industries Limited v Sirbrook (K) Limited [2017] KECA 56 (KLR)", Case Analysis (2017). Civil Appeal No. 331 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/56/eng@2017-11-22

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