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Court of AppealAllowedCivil Appeal No. 290 of 2015· [2017] KECA 536 (KLR)

Christopher Musyoka Musau v 1. N. P. G. Warren 2. D. J. C. Mcvicker 3. L. W. Muriuki 4. K. H. W. Keith & 5 others

Court of Appeal of Kenya
12 May 2017
AMAsike MakhandiaWilliam OukoW. OukoKMK. M'Inoti
3,578 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a judge cannot use 'review' to overturn their own judgment — mistakes like that must be corrected on appeal.

What this practically means

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Executive summary

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The appellant obtained an originating summons judgment in the High Court compelling the respondent advocates, t/a Daly & Figgis, to honour a professional undertaking to release the balance of Kshs.11,568,790 of a land purchase price for L.R No. 11066 Machakos Town, or in the alternative to surrender title documents. The respondents did not appeal, but instead applied under section 80 of the Civil Procedure Act and Order 45 rule 1 for review, contending that the judgment rested on mistakes apparent on the face of the record, chiefly that there was no certificate confirming completion of water works. Odunga, J allowed the review, set aside his own judgment and dismissed the originating summons with costs. The appellant appealed, arguing that the Judge had effectively sat in appeal on his own decision. The Court of Appeal allowed the appeal. It reiterated the three grounds for review under Order 45 rule 1 and held that an error apparent on the face of the record must strike one on merely looking at the record, without a long-drawn process of reasoning on points where two opinions are possible. The Judge had made a conscious and conclusive determination; if wrong, correction lay on appeal, since a functus officio court cannot reverse its own judgment under the guise of review. The alleged error was not patent, as shown by the protracted arguments and lengthy ruling. The Court reversed the review decision and awarded the appellant the costs of the appeal and of the application below.

Key legal issues

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01

Scope of review under Order 45 rule 1 vis-à-vis appellate jurisdiction

Holding

Review jurisdiction is narrower than appellate jurisdiction; a judge who has made a conscious and conclusive determination cannot use review to re-open and overturn his own decision merely because another view is possible.

Reasoning

The Court reiterated that review may be entertained only on the three grounds in Order 45 rule 1. The High Court Judge had conclusively determined the issues on the professional undertaking; if his conclusion was wrong, the appellate system exists to correct such mistakes. Allowing review on grounds that a decision is erroneous in law would expose judgments to attack before functus officio courts, setting a dangerous precedent.

p. 5
02

Whether the alleged omission regarding water works was an error apparent on the face of the record

Holding

The alleged error was not patent; the issue of completion of water works had been strongly contested and considered, so it could not be detected at one glance and did not warrant review.

Reasoning

The Court found that the Judge, having outlined the correct parameters from Nyamogo & Nyamogo and Muyodi, contradicted them by allowing issues he had already conclusively determined to be re-agitated. The length of the ruling (34 pages against a 28-page judgment) demonstrated that the alleged error required a long-drawn process of reasoning, disqualifying it from review.

p. 6

Legal principles established

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  • The power of review under Order 45 cannot be used to reverse or overturn a judge's own judgment; errors of that kind are for appeal, as the court becomes functus officio after judgment.
  • An error apparent on the face of the record must be one that strikes one on merely looking at the record and does not require a long-drawn process of reasoning on points where two opinions are possible.
  • Failure to address an issue and arriving at a wrong conclusion on an issue actually addressed are different; the former may merit review, but a possible view adopted by the court cannot be an error apparent on the face of the record.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling and order of the High Court of 18th January 2013 reviewing and setting aside the judgment of 20th September 2012 is overturned
  3. 3.Costs of the appeal awarded to the appellant
  4. 4.Costs of the review application in the court below awarded to the appellant
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1100 of 2003 (O.S.)
Jurisdiction invoked
First appeal from the High Court under the Court of Appeal's appellate jurisdiction; appeal against an exercise of discretion under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules

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, "Christopher Musyoka Musau v 1. N. P. G. Warren 2. D. J. C. Mcvicker 3. L. W. Muriuki 4. K. H. W. Keith & 5 others", Case Analysis (2017). Civil Appeal No. 290 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/536/eng@2017-05-12

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