Mary Wambui Njuguna v William Ole Nabala & 9 others [2018] KECA 140 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that you cannot use a review application to challenge legal errors—you must appeal, and you cannot do both at once.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the validity of joinder could be addressed by the trial court in a review application
- 2.Whether the joinder of the appellant to the suit was proper
- 3.Whether by dint of the order of joinder, the abated suit was revived
- 4.Whether a review of judgment was warranted in the circumstances
Key legal issues
#Whether alleged errors of law are grounds for review on the basis of error apparent on the face of the record
No. A mere erroneous decision or a view that is possibly correct is not an error apparent on the face of the record; such matters belong to appeal.
The court adopted the classic test in Nyamogo & Nyamogo v Kogo: an error apparent on the face of the record must stare one in the face with no possibility of two opinions. Since the appellant's grievances concerned the Judge's interpretation of the law on abatement and joinder, they involved deliberate understanding and interpretation of law, which cannot be entertained on review by the same Judge or one of equal jurisdiction.
Whether a suit that had abated could be revived by an application for joinder made by the deceased's legal representative
Yes. Order 24 rule 4 does not confine the application to the plaintiff; the legal representative's own application for joinder sufficed and she thereafter participated through counsel.
The court read Order 24 rule 4(1) and (3) and held that substitution of the legal representative of a deceased defendant may be sought by any party, including the legal representative herself. Having successfully sought and obtained joinder and participated through counsel in the trial, the appellant could not later claim her joinder was a nullity; laches and approbation-reprobation preclude that course.
Whether the plaint had to be amended upon substitution of a deceased defendant's legal representative
No rule requires amendment of the plaint where substitution follows the death of a defendant; that requirement applies only to plaintiff-initiated substitution of new parties.
The court distinguished the procedural rules on substitution of parties by a plaintiff from substitution following death of a defendant. Under Order 24 rule 4(2), a person made party as legal representative may make any defence appropriate to that character. The appellant was at liberty to amend her defence but chose not to, so she could not claim denial of the right to be heard.
Whether the trial court could abridge time to enable the appellant to appeal while also seeking review
No. Review and appeal over the same orders are mutually exclusive; the appeal could only lie on the outcome of the review.
Relying on Order 45 rule 2 of the Civil Procedure Rules, the court agreed with the learned Judge that a party cannot pursue an appeal and simultaneously a review of the same orders. The ground of abridgment of time under Section 7 of the Appellate Jurisdiction Act therefore could not assist the appellant who had elected to seek review.
Legal principles established
#- Issues of law concerning abatement of suit and propriety of joinder cannot be entertained on review; they are matters for appeal
- An application under Order 24 rule 4 to substitute the legal representative of a deceased defendant may be made by any party, including the deceased's legal representative, and such joinder revives the suit
- Where a legal representative is joined in place of a deceased defendant, no amendment of the plaint is required; the legal representative may defend and may amend the defence
- A party cannot pursue a review and an appeal against the same orders simultaneously
Court orders
#- 1.Appeal dismissed
- 2.Costs awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Malindi
- Malindi Environment and Land Court Case No. 64 of 2007 (Formerly Mombasa HCCC No. 11 of 2001)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate Jurisdiction Act
Relief refused
#Review of the judgment of 6th March 2015 on the ground of error apparent on the face of the record
Questions regarding abatement of suit and propriety of joinder are issues of law raisable only on appeal, not review
Abridgement of time to file Notice of Appeal out of time
Appellant could not pursue review and appeal over the same orders simultaneously
Costs
Appeal dismissed with costs to the 1st respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the aforesaid reasons we find this appeal without merit and order it dismissed with costs to the 1 st respondent.
questions regarding the abatement of suit and the propriety of the appellant’s joinder to the abated suit, being issues of law, could only be raised in an appeal and not in a review
the application to substitute the legal representative in place of the deceased defendant may be made by any party to the proceedings. It may very well even be made by the deceased’s legal representative.
No rule requires that the plaint must be amended.
it was not open for the appellant to pursue an appeal and at the same time a review of the same orders
when a court is sitting on review, it is not sitting on appeal of its own decision
Issues in the judgment
#The judgment's delivery clause appears internally inconsistent: the coram/heading records the court as sitting at Malindi, but the closing clause states delivery at Mombasa, and the date clause contains a typographical error ('15tday')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wambui Njuguna v William Ole Nabala & 9 others [2018] KECA 140 (KLR)", Case Analysis (2018). Civil Appeal No. 100 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/140/eng@2018-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.