Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 262 of 2017· [2018] KECA 602 (KLR)

Peter Kinyanjui v Advocate Disciplinary Tribunal & another [2018] KECA 602 (KLR)

Court of Appeal of Kenya
18 May 2018
1,891 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal dismissed Kinyanjui's appeal because he appealed a ruling made in his favour instead of properly appealing the earlier judgment he actually disagreed with.

What this practically means

#

Executive summary

#
This appeal arose from disciplinary proceedings the appellant, Peter Kinyanjui, lodged before the Advocates Disciplinary Tribunal against Anne Wambui Ngugi, the advocate who had witnessed a 1992 construction agreement between him and Virginia Waithira Mwangi and allegedly retained his title documents. The Tribunal cleared the advocate of professional misconduct, and the High Court (Odunga, J.) dismissed the appellant's judicial review application on 29th June 2016, holding that review jurisdiction examines the decision-making process, not the merits, and cannot substitute the court's discretion for that of the Tribunal. On a later review application, the Judge set aside the costs order against the appellant by ruling of 7th March 2017, finding an error apparent on the face of the record. The appellant, appearing in person, appealed that ruling, contending that the Judge, having conceded error on costs, should have granted his substantive prayers. The 1st respondent objected that the grounds of appeal related to the earlier 2016 judgment, not the ruling appealed from. The Court of Appeal (Ouko, Kiage and Murgor, JJ.A) agreed: the notice of appeal clearly challenged only the 7th March 2017 ruling, which had been decided in the appellant's favour; none of the memorandum's grounds bore on that ruling; and although the appellant was in substance aggrieved by the 2016 judgment, no notice of appeal was ever filed against it, and the pauper leave granted in July 2017 would have required an enlargement of time to pursue it. The Court dismissed the appeal and made no orders as to costs.

Key legal issues

#
01

Whether the appeal could succeed where the memorandum of appeal challenged the wrong decision

Holding

The appeal was dismissed because none of the grounds in the memorandum related to the ruling of 7th March 2017, which was the only decision properly before the Court on the notice of appeal, and that ruling had been made in the appellant's favour.

Reasoning

The notice of appeal was explicit that the decision challenged was that of 7th March 2017, a review ruling setting aside the costs order against the appellant. The memorandum's grounds instead faulted the earlier judgment of 29th June 2016 dismissing the judicial review application, yet no notice of appeal was ever filed against that judgment. The Court declined to treat the appeal as one against the 2016 judgment, since the pauper leave obtained related only to the later decision and pursuing the 2016 judgment would require enlargement of time.

p. 3
02

The scope of judicial review over the Advocates Disciplinary Tribunal (as endorsed by the High Court and not disturbed on appeal)

Holding

Judicial review is concerned with the decision-making process, not the merits; where a tribunal has undoubted jurisdiction and discretion, the High Court in review proceedings cannot substitute its own discretion nor inquire into merits, the remedy being an appeal.

Reasoning

The High Court, in the judgment of 29th June 2016, held that although the exercise of the Tribunal's discretion may have been wrong, review jurisdiction does not permit merits inquiry or substitution of the court's discretion for that of the Tribunal; the proper route is an appeal under the applicable statutory framework. The appellant's attack on that reasoning was not properly before this Court, since no appeal lay from the 2016 judgment.

p. 2

Legal principles established

#
  • A memorandum of appeal must relate to the specific decision appealed against; grounds directed at a different decision (here one made in the appellant's favour, on review) cannot sustain the appeal
  • A party cannot properly appeal a decision granted in its favour
  • Leave to appeal as a pauper granted for one decision does not permit the appellant to file an appeal against a different, earlier decision without an application for enlargement of time

Court orders

#
  1. 1.Appeal dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 45 rule 2
On appeal from
High Court of Kenya at Nairobi
High Court Misc. Application No. 6 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal against a High Court ruling (appeal filed as a pauper with leave granted by Karanja, JA on 24th July 2017)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Kinyanjui v Advocate Disciplinary Tribunal & another [2018] KECA 602 (KLR)", Case Analysis (2018). Civil Appeal No. 262 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/602/eng@2018-05-18

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