Peter Kinyanjui v Advocate Disciplinary Tribunal & another [2018] KECA 602 (KLR)
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
#Key legal issues
#Whether the appeal could succeed where the memorandum of appeal challenged the wrong decision
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.
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.
The scope of judicial review over the Advocates Disciplinary Tribunal (as endorsed by the High Court and not disturbed on appeal)
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.
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.
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.Appeal dismissed
- 2.No orders as to costs
- 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.