Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute [2018] KECA 210 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that you cannot use a review application to reopen a decided case or fix gaps you left in your original pleadings.
What this practically means
#Executive summary
#Key legal issues
#Error apparent on the face of the record as a ground for review
No error apparent on the face of the record was established; the trial court decided the case on the pleadings and material placed before it
The Court of Appeal applied National Bank of Kenya v Ndungu Njau and Nyamogo & Nyamogo v Kogo, holding that an apparent error must be self-evident without elaborate argument. The appellants were bound by their pleadings and elected to proceed by constitutional petition on affidavit evidence and submissions; the trial judge was entitled to confine himself to the record. Reopening to adduce viva voce evidence was impermissible on review.
Whether the trial court was obliged to frame reliefs under Article 23 of the Constitution
The trial judge was entitled to confine himself to the provisions cited and the material placed before him; Article 23 of the Constitution was not cited as an access provision and no prayer under it was made
The appellants pleaded Article 23 of the Universal Declaration of Human Rights, not Article 23 of the Kenyan Constitution, and made no prayer or submission under that provision. Parties are bound by their pleadings; a court cannot be faulted for failing to grant relief under a provision not invoked as an access provision.
Inordinate delay in seeking review
The review Judge correctly found the delay of more than one year unexplained and inordinate; explanations advanced for the first time on appeal could not be considered
The rules governing review prescribe no timelines, but the appellants gave no reasons for the delay in their application or submissions before the review court. Rule 104 of the Court of Appeal Rules bars arguing grounds not raised below. Article 159(2)(d) cannot cure the failure to advance reasons for the delay.
Limits of Article 159(2)(d) as a curative provision
Article 159(2)(d) is not a panacea for all procedural shortcomings and cannot cure a party's failure to advance reasons for delay before the review court
Following Raila Odinga v IEBC, Lemanken Arata v Lempaka and Patricia Cherotich Sawe v IEBC, the Court held that procedure should not trump substantive justice, but Article 159(2)(d) cannot remedy all procedural deficiencies, including the appellants' failure to explain their delay.
Scope of 'any other sufficient reason' for review
'Any other sufficient reason' need not be analogous with the other grounds in the rule, but the appellants did not bring themselves within it
Relying on Wangechi Kimita v Wakibiru and Sarder Mohammed v Charan Singh Nand Sing, the Court restated that the general head of review is not restricted to grounds analogous to the specific ones, but found the appellants' application was in substance an attempt to reopen a concluded matter and fill gaps in their case.
Legal principles established
#- An appellate court will not interfere with the exercise of a trial judge's discretion unless satisfied the judge misdirected himself and was clearly wrong, resulting in injustice
- An error apparent on the face of the record must be self-evident and not require elaborate argument; a different view of the matter or an erroneous conclusion of law is not a ground for review
- Parties are bound by their pleadings and the evidence placed before a court as the basis for the reliefs sought
- Delay per se does not disentitle a party to relief; where there has been delay an explanation is called for, and only an unsatisfactory explanation defeats relief
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Employment and Labour Relations Court at Nakuru
- Nakuru Industrial Court Petition No. 2 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court (rule 104 of the Court of Appeal Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute [2018] KECA 210 (KLR)", Case Analysis (2018). Civil Appeal No. 271 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/210/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.