Fred Wafula Ngichabe & 2 others v Evans Wafula Wepukhulu & 7 others
The bottom line
#Kenya's Court of Appeal confirmed that if a court order is wrong, you must appeal it, not ask for review.
What this practically means
#Executive summary
#Key legal issues
#Scope of the Court of Appeal's mandate where the appeal is against a ruling on review rather than the original orders
The Court confined itself to whether the Judge properly exercised his review discretion, not to the propriety of the original orders
The appeal was brought against the ruling dismissing the 1st respondent's motion for review, not against the original orders of 15th May 2012. Since the Judge had dealt with the application under Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules, the Court's task was limited to assessing whether the discretion to review was properly and judicially exercised, leaving the validity of the original orders outside its mandate.
Whether the appellants established grounds for review under Order 45 Rule 1
No ground for review was established: no new matter, no error apparent on the face of the record, and no sufficient reason was shown
The grounds and affidavits in support of the motion disclosed only the circumstances in which the appellants claimed to have acquired title, matters that were within their knowledge all along. No discovery of new and important matter, no mistake or error apparent on the face of the record, and no other sufficient reason was alleged to justify review, so the Judge's refusal to review could not be faulted.
Whether a party affected by an order obtained by consent may attack it through review
Complaints about the legality of a consent order are matters for appeal, not review; and the appellants' titles could not be sustained because the vesting order underpinning them had been set aside
The original orders were the product of a consent between the parties to the succession cause which had the effect of revoking the confirmed grant and restoring the land to its original number. The appellants were not parties to that consent, but their grievances as to error of law and abuse of due process lay only in an appeal against the original orders. Their titles derived from a vesting order that had already been set aside by the High Court.
Legal principles established
#- An error of law or an allegation of abuse of due process in the making of an order is a ground of appeal against that order and not a ground for review under Order 45 of the Civil Procedure Rules
- An error or omission justifying review must be self-evident and not require elaborate argument; a different judicial view or an erroneous conclusion of law is not a ground for review
- The words 'any other sufficient reason' for review are to be viewed in the context of section 80 of the Civil Procedure Act and need not be analogous with the other grounds in Order 45
Court orders
#- 1.The appeal was dismissed
- 2.Costs of the appeal were awarded to the respondents
- On appeal from
- High Court of Kenya at Kakamega
- Succession Cause No. 124 of 1986
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over an appeal from a ruling of the High Court; the appeal was argued on the scope of Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fred Wafula Ngichabe & 2 others v Evans Wafula Wepukhulu & 7 others", Case Analysis (2017). Civil Appeal No. 22 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/105/eng@2017-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.