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Court of AppealDismissedCivil Appeal No. 152 of 2016· [2018] KECA 206 (KLR)

Duncan Waruingi Kagiri & 2 others v George Mwangi Kagiri [2018] KECA 206 (KLR)

Court of Appeal of Kenya
18 October 2018
2,189 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that review can't fix a decision you simply disagree with — those complaints belong in an appeal, filed on time.

What this practically means

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Executive summary

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The appellants sought review of Ouko J's decision dismissing their application to revoke a grant of letters of administration in Naivasha Succession Cause No. 70 of 2005, contending that the dismissal rested on the mistaken belief that their earlier suit, HCCC No. 117 of 2007, was still pending when it had in fact been withdrawn by consent. Wendoh J dismissed the review application, finding it lacked merit and did not meet the threshold in Order 45 of the Civil Procedure Rules. The Court of Appeal affirmed. Applying the principles in Shah v Mbogo, it held that an appellate court will not interfere with the exercise of a trial judge's discretion absent an error of principle. On the record, Ouko J had dismissed the revocation application on the grounds of lack of pecuniary jurisdiction and absence of proof that the grant was improperly issued - not on any assumption about HCCC No. 117 of 2007 - so no error appeared on the face of the record. The appellants' complaints about non-participation in the succession and forged signatures went to the substance of the dispute and belonged on appeal, not review; citing Origo v Mungala, the Court reiterated that an erroneous conclusion of law or evidence is a ground of appeal, not review, and that a review court cannot sit on appeal over its own decisions. Finally, no reason was advanced to explain the delay in bringing the review. The appeal was dismissed with costs to the respondent. This judgment binds lower courts on the threshold requirements for review under Order 45.

Key legal issues

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01

Error apparent on the face of the record

Holding

No error or omission on the face of the record existed; Ouko, J dismissed the application on grounds of lack of pecuniary jurisdiction and absence of proof of improper grant, not on the mistaken belief that HCCC No. 117 of 2007 was pending

Reasoning

The Court examined Ouko J's ruling and found the dismissal rested on two grounds - no evidence that the Naivasha magistrate's court lacked pecuniary jurisdiction, and nothing to show the grant was improperly issued. The claim of mistaken belief about HCCC 117 of 2007 was therefore unwarranted and misplaced.

p. 2
02

Discovery of new and important matter

Holding

The appellants' averments (non-participation, forged signatures, registration not conclusive) were not new matters but substantive disputes for appeal

Reasoning

Reviewing the motion, the Court found nothing new or different that the court ought to have considered. The complaints went to the substance of the dispute over participation in the succession cause, which ought to be ventilated on appeal rather than review, and did not qualify as new and important material.

p. 3
03

Unreasonable delay

Holding

No reason was advanced to explain the delay in bringing the review application; the learned Judge rightly declined the review on this basis

Reasoning

Save for a passing mention in paragraph 11 of the motion relating to counsel's knowledge of the withdrawal of HCCC 117 of 2007, and not the alleged failure of counsel to attend the ruling, no explanation for the delay was given. Without material upon which the Judge could exercise discretion, her refusal could not be faulted.

p. 3

Legal principles established

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  • An appellate Court will not ordinarily interfere with the exercise of discretion by a trial Judge unless it is shown that relevant principles were ignored or irrelevant matters introduced
  • An error apparent on the face of the record for purposes of review must be self-evident and require no elaborate argument; an erroneous conclusion of law or evidence is a ground of appeal, not review
  • A review court cannot re-adjudicate issues already determined before it; complaints going to the substance of a dispute must be pursued on appeal, not review

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1 and 2
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (3)

  • Shah vs Mbogo
    (1968) EA 93
  • National Bank of Kenya Limited vs Ndungu Njau
    Civil Appeal No 211 of 1996
  • Origo & Another vs Mungala
    [2005] 2 KLR 307
On appeal from
High Court at Nakuru
Miscellaneous Succession Cause No. 12 of 2007
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure Act and Appellate Jurisdiction Act against 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, "Duncan Waruingi Kagiri & 2 others v George Mwangi Kagiri [2018] KECA 206 (KLR)", Case Analysis (2018). Civil Appeal No. 152 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/206/eng@2018-10-18

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