Mpenzwe Ngoba Mtana & another v Zuhura Shaban [2018] KECA 299 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it rarely disturbs a judge's discretion, and 'errors' must be obvious on the record before a review will be granted.
What this practically means
#Executive summary
#Key legal issues
#Interference with discretionary decisions on appeal
The learned Judge properly exercised his discretion in dismissing the review application; there was no misdirection, misapprehension of the law, or failure to consider relevant matters justifying appellate interference.
The Court reiterated the settled test from Mrao Ltd v First American Bank for disturbing discretionary decisions. Applying it, the Court found the Judge correctly addressed the conditions for review under Order 45 of the Civil Procedure Rules and concurred with his findings that the certified proceedings showed the Tribunal decision was dated 21st September 2009, that the claimed error was not self-evident, and that the alleged hearing notice could not be relied upon absent an affidavit from its maker.
Error apparent on the face of the record as a ground for review
The alleged error in the date of the Tribunal's decision was not self-evident; the proceedings formed part of the record of appeal and showed the decision dated 21st September 2009, and the certification point was where any error should have been corrected.
The Court adopted the National Bank of Kenya v Ndungu Njau principles that a reviewable error must be self-evident without elaborate argument. The Judge's findings that it was improbable the Committee reserved its decision for over a year, and that a hearing notice cannot be relied on without an affidavit of its maker, were concurred with. The purported error was therefore not apparent on the face of the record.
Timing of an objection to competency of an appeal under Rule 84
The respondent's objection that the appeal before the Court of Appeal was filed out of time failed because it was raised more than thirty days after service of the record of appeal, contrary to the proviso to Rule 84.
The record of appeal was filed on 19th October 2017 and the objection was raised in submissions filed on 25th May 2018, well outside the thirty-day window in the proviso to Rule 84. The Court therefore declined to entertain the competency objection on its merits.
Legal principles established
#- An appellate court will interfere with a judge's exercise of discretion only where the judge misdirected himself, misapprehended the law, or failed to take into account a relevant matter.
- Under the proviso to Rule 84 of the Court of Appeal Rules, an application to strike out a notice of appeal or an appeal must be brought within thirty days from the date of service of the notice of appeal or record of appeal.
- A review on the ground of error apparent on the face of the record lies only where the error is self-evident and requires no elaborate argument; an erroneous conclusion of law or misconstruction of a statute is not a ground for review.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Environment and Land Court at Malindi
- Civil Appeal No. 48 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal against a decision of the Environment and Land Court (Court of Appeal Rules, appeal as of right against ELC ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mpenzwe Ngoba Mtana & another v Zuhura Shaban [2018] KECA 299 (KLR)", Case Analysis (2018). Civil Appeal No. 74 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/299/eng@2018-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.