Mashreq Bank P.s.c v Kuguru Food Complex Limited
The bottom line
#Kenya's Court of Appeal restored a fresh trial after ruling that a judge cannot use review jurisdiction to overturn another judge's order of equal authority.
What this practically means
#Executive summary
#Key legal issues
#Whether an application for review made four years after the order was inordinate
The delay ground alone would not have dislodged the ruling, since the Judge weighed the delay and accepted the explanation that the witness's departure was discovered shortly before the hearing date
The Court noted that the issue of delay was canvassed before the Judge, who considered the supplementary affidavit of Peter Kuguru explaining that he learnt only at the end of April 2005 that the witness had left the country. The Court said that on this ground alone it might have agreed with the Judge's reasoning, but it was troubled that the witness had not been sought sooner after the de novo order of September 2000. However, the decisive flaws lay in other grounds.
Whether the Judge on review considered all relevant material, in particular the state of the typed proceedings
The Judge failed to consider the key reason for the de novo order - the incoherence of the typed proceedings - and instead focused only on delay and discovery about the witness
The de novo order by Mbaluto J. was made because counsel for the Bank complained that the typed proceedings were unclear and did not capture the gist of the evidence, a position Kuguru Foods did not oppose. Waweru J., in reviewing, ignored this ground and weighed only the delay and the impossibility of knowing the witness had left. This omission meant the review did not engage the true basis of the order under review and raised fair-trial concerns.
Whether the review amounted to a Judge sitting on appeal over an order of a Judge of concurrent jurisdiction
Determining whether the de novo order was erroneous required interrogating whether the proceedings were incoherent, which was beyond the purview of review and amounted to a Judge sitting on appeal over a concurrent-jurisdiction order
To resolve the divergent positions - the Bank asserting incoherent proceedings, Kuguru Foods asserting discovery about the witness - the reviewing Judge would have to examine why Mbaluto J. ordered a de novo hearing and whether the proceedings were indeed incoherent. That is appellate, not review, territory. The Court adopted the holding in Stephen Mwaura Njuguna v Douglas Kamau Ngotho that setting aside a concurrent judge's decision is for an appellate court.
Legal principles established
#- A Judge cannot sit on an appeal over an order issued by a court of concurrent jurisdiction; such correction is for an appellate court, not a Judge exercising review jurisdiction
- An application for review of a decree or order must be made to the court which passed the decree or made the order without unreasonable delay
- An appellate court will not interfere with the exercise of a judge's discretion unless the judge misdirected himself, arrived at a wrong decision, or was clearly wrong with resultant injustice
Court orders
#- 1.The appeal is allowed
- 2.The ruling dated 18th November 2005 is set aside
- 3.The ruling is substituted with an order that the trial of the suit shall commence de novo
- 4.Costs of this appeal shall abide the outcome of the suit
- On appeal from
- High Court of Kenya at Nairobi, Milimani Commercial Courts
- Milimani Commercial Courts Civil Suit No. 1287 of 1999
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory appeal from the High Court (Court of Appeal jurisdiction under the Constitution and the Appellate Jurisdiction Act, as invoked by the notice of appeal; no specific provision quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mashreq Bank P.s.c v Kuguru Food Complex Limited", Case Analysis (2018). Civil Appeal No. 71 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/220/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.