Maingi Mbinzu & 314 others v County Council of Kitui & another [2017] KECA 95 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot appeal a court ruling and simultaneously ask the same court to review it — you must choose one remedy.
What this practically means
#Executive summary
#Key legal issues
#Whether there was an error apparent on the face of the record justifying review
No error apparent on the face of the record was established; the alleged defects were not self-evident and the suit property was clearly identified in the plaint.
The Court applied Order 45 CPR and its jurisprudence on error apparent on the face of the record, holding that an error must stare one in the face and admit of no two opinions. The alleged ambiguity about the title number failed because the plaint identified the property, the suit and the strike-out application related to that property, and the ruling referred to the suit land. A possible view adopted by the court below cannot constitute an error apparent on the face of the record.
Whether review and appeal can be pursued simultaneously
They cannot; a party must elect one remedy. Having filed a Notice of Appeal against the ruling striking out the suit, the appellants could not also apply for review.
Section 80 of the Civil Procedure Act as elaborated by Order 45 CPR 2010 confines review to a party aggrieved by an order from which no appeal has been preferred. The appellants had lodged a Notice of Appeal against the strike-out ruling through their then advocates, so the review application was irregular and the Judge rightly found that what was sought was an appeal against her own ruling, which the law does not permit.
Whether the High Court Judge lacked jurisdiction because she was not an Environment and Land Court Judge
The argument failed because the parties submitted to the jurisdiction of the High Court and never challenged it during the proceedings.
The appellants themselves filed the suit in the High Court and prosecuted it there without questioning jurisdiction. Having submitted to the jurisdiction, they could not resile from it at the review stage to attack the ruling. The Court therefore upheld the Judge's finding that the objection could not be taken again before her.
Whether the appellate court should interfere with the Judge's discretionary refusal of review
No; none of the established grounds for interference was demonstrated.
Applying the classic statement by Madan, JA in the East African Underwriters case, an appellate court interferes with discretion only where the Judge misdirected himself on law or fact, took into account irrelevant considerations, failed to take into account relevant ones, or was plainly wrong. The appellants failed to show any of these defects; the Judge had correctly considered Order 45 and the authorities, including Nancy Wangari v Michael Mungai, and concluded no error had been identified.
Whether the strike-out ruling was in effect a summary judgment not sought by the respondent
The complaint had no merit; the strike-out was justified because the second respondent demonstrated registered ownership and the appellants had no identifiable interest, and Waweru J's unchallenged findings stood.
The Court noted that the appellants' claim to the trust land had already been rejected by Waweru J, who found them trespassers after the land was registered in the name of Ukamba Agricultural Institute Limited and transferred to the second respondent, and that ruling was never appealed. Given those unchallenged findings, the Judge's decision to strike out the suit could not be faulted as an unrequested summary judgment.
Legal principles established
#- A party aggrieved by an order cannot file an appeal and simultaneously apply for review of the same order; the two remedies are mutually exclusive.
- An error apparent on the face of the record must be self-evident and not require elaborate argument to establish.
- An appellate court will not interfere with a trial Judge's exercise of discretion unless the Judge misdirected himself on law or fact, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision was plainly wrong.
- A party who files a suit in a court and litigates without objection submits to that court's jurisdiction and cannot later challenge it.
Court orders
#- 1.The appeal is dismissed with costs to the second respondent
- On appeal from
- High Court of Kenya at Machakos
- H.C.C.A. No. 107 of 2010
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court under the Constitution and the Court of Appeal Act (appeal against a review ruling of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maingi Mbinzu & 314 others v County Council of Kitui & another [2017] KECA 95 (KLR)", Case Analysis (2017). Civil Appeal No. 6 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/95/eng@2017-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.