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Court of AppealPartially AllowedCivil Appeal No. 16 of 2014

Samuel Amugune & 4 others v Attorney General [2018] KECA 40 (KLR)

Court of Appeal of Kenya
20 December 2018
4,313 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed former railway workers to reopen a pension case, ruling long delay is excusable when the State holds funds as a trustee.

What this practically means

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Executive summary

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This is a single judgment of the Court of Appeal (Nambuye, Otieno-Odek and ole Kantai, JJA) allowing the appeal of five former employees of the East African Railways against a ruling of the High Court (Ougo, J.) dismissing their application for review of a 2004 judgment by Lenaola, J. The 2004 judgment had dealt with their claim to pension dues from funds paid by the UK Government to the East African Community Partner States. The appellants sought review on the basis of newly discovered evidence, including a 2000 Ugandan consent judgment and a 2006 Tanzanian Deed of Settlement, and Hansard proceedings revealing the amount Kenya received. The Court of Appeal held, first, that the foreign judgments were extraneous material that could not amount to an error apparent on the face of the record, affirming the judge on that ground. Secondly, however, it found the delay was explained: knowledge of the relevant facts arose from Hansard proceedings of 2009 and 2012, the application was filed promptly thereafter, and the respondent, holding the funds as trustee for the appellants as beneficiaries, would suffer no prejudice. Thirdly, the Court found the judge had misdirected herself by stating it was not her duty to examine the paragraphs of the application. The Court set aside the ruling of 29th November 2013, remitted the 2004 judgment for review limited to the new evidence in the notice of motion, directed that the review be heard by a judge other than Ougo, J., and allowed the appeal with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge was correct in dismissing the appellants' application for review of the judgment of Lenaola, J. delivered on 8th October 2004
  2. 2.Whether the material relied on by the appellants constituted an error apparent on the face of the record
  3. 3.Whether the nine-year delay in filing the application for review was sufficiently explained and excusable

Key legal issues

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01

Whether the Uganda and Tanzania judgments constituted new evidence amounting to an error apparent on the face of the record

Holding

No. Material outside the record of the trial judgment cannot constitute an error apparent on the face of the record; the ground failed.

Reasoning

The appellants asked the Court to go beyond the trial judgment and look at material from Uganda and Tanzania not before the trial judge. The Court held such extraneous material cannot be an error on the face of the record, adopting the test that an apparent error must be obvious and patent, not established by a long drawn process of reasoning admitting two opinions. It affirmed the judge's reasoning on this ground.

p. 4
02

Whether the nine-year delay in filing the review application was excused

Holding

Yes. Knowledge of the new evidence only arose through Hansard proceedings of 2009 and 2012; the application was promptly filed thereafter and the respondent would suffer no prejudice.

Reasoning

The Court analyzed the supporting affidavit and found the Uganda judgment (2000) and Tanzania Deed of Settlement (2006) post-dated the trial judgment. The appellants learned the amount Kenya received from the British Government through Hansard proceedings of 5th August 2009 and 19th September 2012, and filed the review on 28th January 2013. Given the trustee-beneficiary relationship, delay could not prejudice the respondent, and Section 20 of the Limitation of Actions Act (no limitation for trust actions by beneficiaries) was engaged.

p. 4
03

Whether the High Court judge misdirected herself in considering the review application

Holding

Yes. Her statement that it was not the court's duty to look at the paragraphs of the application was a misdirection in law justifying setting aside the ruling.

Reasoning

The impugned ruling stated it was not the court's duty to look at the paragraphs and conclude whether the information sufficed for review. The appellate Court held this invited an inference that the judge did not consider all the information, and that it is precisely the court's duty to examine the pleadings and affidavits. This misdirection by itself warranted setting aside the ruling and remitting the matter for review before another judge.

p. 5
04

Relevance of the Alfred Asidaga Mulima decision cited by the respondent

Holding

The decision was not relevant at this stage, though the Court appreciated its dicta that inordinate delay must be assessed for unreasonableness and prejudice.

Reasoning

The respondent urged reliance on Alfred Asidaga Mulima, involving former East African Airways employees. The Court considered it and found it not relevant to the appeal at the present stage of the dispute, but acknowledged the dictum that even where constitutional rights are violated, the court should consider whether delay was unreasonable and prejudicial to the respondent.

p. 5

Legal principles established

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  • An application for review will only be allowed on strong grounds, particularly where its effect would be to reopen the case afresh
  • An error is not apparent on the face of the record if the court must travel beyond the record to establish it; extraneous material cannot constitute such an error
  • The discovery of new and important matter under review relates to facts, not to issues of law
  • A party who chooses to proceed by way of review of a judgment loses the right of appeal against that judgment when review is declined
  • An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong resulting in injustice
  • It is the duty of a court determining a review application to examine the pleadings, affidavits and all paragraphs filed to determine whether the information justifies review; declining to do so is a misdirection
  • Where the State holds funds as trustee for beneficiaries, it would be unconscionable for a trustee to lock out beneficiaries and retain trust funds on account of delay

Court orders

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  1. 1.Set aside the ruling of the High Court dated 29th November 2013
  2. 2.Remit for review the judgment dated 8th October 2004 delivered by Lenaola, J. in H.C.C.C. No. 1897 of 1997 as consolidated with H.C.C.S. No. 743 of 2002
  3. 3.The review be limited to consideration of the new evidence presented by the appellants in the Notice of Motion dated 28th January 2013
  4. 4.The case be heard by any judge other than Ougo, J.
  5. 5.Appropriate orders be made upon review
  6. 6.Appeal allowed with no order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 1897 of 1997 (Ruling dated 29th November 2013, Ougo, J.)
Jurisdiction invoked
First appellate jurisdiction over an appeal from the High Court (ruling on review under Order 45 of the Civil Procedure Rules, 2010)
Consolidated with
H.C.C.S No. 743 of 2002

Relief refused

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Reconsideration of the trial court's judgment on the merits beyond the scope of review

The Court held it was not seized of the merits of the 2004 judgment; its task was confined to whether the dismissal of the review application was correct, and the remitted review is limited to the new evidence

p. 3

Costs

Appeal allowed with no order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In totality, this appeal has merit. We hereby set aside the ruling of the High Court dated 29th November, 2013.
p. 5Disposition - setting aside the impugned ruling
We remit for review the Judgment dated 8th October, 2004 delivered by Lenaola, J (as he then was) in H.C.C.C. No. 1897 of 1997 as consolidated with H.C.C.S. No. 743 of 2002. The review be limited to consideration of the new evidence presented by the appellants in the Notice of Motion dated 28th January, 2013.
p. 5Final orders - remit for limited review before another judge
This appeal be and is hereby allowed with no order as to costs.
p. 5Final orders - costs
Such extraneous material cannot constitute an error on the face of the record.
p. 4Error apparent on the face of the record
It would be unconscionable and not in the interest of justice for a trustee to lock out beneficiaries and retain trust funds on account of delay.
p. 5Trustee-beneficiary relationship and delay
An application for review will only be allowed on strong grounds particularly if its effect will amount to re- opening the application or case afresh
p. 1Threshold for review

Issues in the judgment

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minor

The ruling quoted from the trial judge contains an internal textual variation ('warrant or warrant an intervention') in the Court's later quotation compared to the earlier quotation of the same passage ('or warrant an intervention').

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, "Samuel Amugune & 4 others v Attorney General [2018] KECA 40 (KLR)", Case Analysis (2018). Civil Appeal No. 16 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/40/eng@2018-12-20

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