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Court of AppealDismissedCivil Appeal No. 286 of 2009· [2017] KECA 399 (KLR)

Athumani Ramadhan Mkomwa v Scandinavia Express Service Ltd [2017] KECA 399 (KLR)

Court of Appeal
28 July 2017
EGE.M. GithinjiGKG.B.M. KariukiFSF. Sichale
1,585 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a review cannot fix a judge's reasoning or re-argue evidence; only obvious errors like mathematical mistakes qualify.

What this practically means

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Executive summary

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The Court of Appeal (Githinji, G.B.M. Kariuki and Sichale, JJA) dismissed this appeal against the ruling of Ang'awa, J. of the High Court, which had refused the appellant's application for review of a formal proof judgment awarding him Ksh.2,768,115 in an employment-related claim against Scandinavia Express Service Ltd. The appellant sought review to add awards of Ksh.144,000 for loss of earnings and Ksh.720,000 for loss of future earnings, contending that the trial judge erred in requiring a pay slip and letter to prove half-pay, that the absence of a defence meant his averments were deemed admitted under Order VI Rule 9(1), and that failure to appreciate the existence of an interlocutory judgment was an error apparent on the face of the record. He relied on Nathan Nyambu Maaghanganga v Benard M. Wanjala to argue that damages could be assessed without a pay slip. The Court of Appeal applied Order 45(1) of the Civil Procedure Rules and section 80 of the Civil Procedure Act, holding that review lies only for new and important matter, an error apparent on the face of the record, or other sufficient reason. It held that the alleged errors were not patent errors requiring no argument; at most they were grounds of appeal. The review application did not fall within Order 45(1), the trial judge was right to dismiss it, and the appeal was dismissed. As the respondent did not participate, no order as to costs was made.

Key legal issues

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01

Whether the grievances raised amounted to an error apparent on the face of the record justifying review

Holding

The alleged failures by the trial judge were not patent errors apparent on the face of the record; at most they were arguable grounds of appeal, not grounds for review.

Reasoning

The court held that the alleged error regarding the interlocutory judgment was not self-evident and required argument, unlike a mathematical error. The complaint about the pay slip and half-pay finding was likewise not apparent on the record nor new evidence unknown to the appellant at trial. Such complaints belong on appeal against the formal proof judgment, not in a review application under Order 45(1).

p. 3
02

Whether the appellant's application satisfied Order 45(1) of the Civil Procedure Rules

Holding

It did not; the trial judge was right to dismiss the application for review.

Reasoning

Order 45(1) permits review only on discovery of new and important matter or evidence not obtainable with due diligence, an error apparent on the face of the record, or any other sufficient reason. The appellant established none of these grounds. The matters raised were evidential complaints and perceived misappreciations that could have been pursued on appeal, so the dismissal of the review application was proper.

p. 3

Legal principles established

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  • A review cannot be used as an avenue for a fresh hearing or for correcting an erroneous view taken earlier; it is confined to correcting a patent error apparent on the face of the record without argument, new and important matter, or other sufficient reason.
  • An error apparent on the face of the record must be a patent error requiring no argument to establish, such as a mathematical error.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No order as to costs, as the respondent did not take part in the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder VI Rule 9(1)
  • Civil Procedure RulesO.XLIV rule 1(5) (now Order 45(1))
  • Civil Procedure Act, Chapter 21 of the Laws of KenyaSection 80(a)

Cases cited (1)

  • Nathan Nyambu Maaghanganga vs Benard M. Wanjala & Another [2016] eKLR, Eldoret Civil Appeal No. 110 of 2013 UR
    [2016] eKLR
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1473 of 2005
Jurisdiction invoked
First appellate appeal under the Civil Procedure Act from the High Court ruling dismissing an application for review

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, "Athumani Ramadhan Mkomwa v Scandinavia Express Service Ltd [2017] KECA 399 (KLR)", Case Analysis (2017). Civil Appeal No. 286 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/399/eng@2017-07-28

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