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Court of AppealDismissedCivil Appeal No. 148 of 2018· [2019] KECA 343 (KLR)

Julius Ochieng Oloo & another v Lilian Wanjiku Gitonga [2019] KECA 343 (KLR)

Court of Appeal of Kenya
27 September 2019
2,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that jurisdictional errors must be challenged on appeal, not through review, and dismissed an appeal delayed thirteen years.

What this practically means

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Executive summary

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This is a judgment of the Court of Appeal at Nairobi (Koome, Okwengu and Kantai, JJ.A) dismissing an appeal against a ruling of the Environment and Land Court (Obaga, J.) dated 27th June 2017, which had refused the appellants' application for review of an order of 27th January 2015 (Nyamweya, J.) dismissing their land suit (ELC No. 225 of 2011) for want of prosecution. The suit had been dismissed after the appellants, though directed in a ruling of 17th November 2011 to join the City Council of Nairobi as a party, failed to comply for over two years and failed to set the suit down for hearing. Before the Court of Appeal, counsel for the appellants challenged for the first time the jurisdiction of Nyamweya, J., a High Court judge, to sit in a land and environment matter. The court held that the sole issue was whether the Judge erred in dismissing the review application. Relying on the settled grounds for review under Order 45 of the Civil Procedure Rules and National Bank of Kenya v Ndungu Njau, the court held that lack of jurisdiction by the court whose order is sought to be reviewed is not an error apparent on the face of the record, but an error of judgment on the merits correctable only on appeal; a review application cannot be used to introduce an appeal through the backdoor. Applying Mbogo v Shah and the Ivita guidelines, the court found the appellants guilty of inordinate delay, their explanations (advocate's movement between firms and engagement in election petitions) having been found farcical, and noted the dispute had remained unresolved for almost thirteen years. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether want of jurisdiction in the judge whose order is sought to be reviewed is a ground for review under Order 45 of the Civil Procedure Rules

Holding

No. Lack of jurisdiction is not an error apparent on the face of the record but an error of judgment going to the merits, correctable only on appeal. Review lies only for discovery of new and important matter, an error or mistake on the face of the record, or other sufficient reason.

Reasoning

The court framed the grounds of review under Order 45 as limited and supplementary to a requirement of no unreasonable delay. An error of jurisdiction, even if established, is an error in the exercise of judgment on the merits, and an issue hotly contested cannot be reviewed by the same court that adjudicated it. Such a contention is properly the province of an appellate court, and raising it late during oral submissions could not convert review into an appeal.

p. 3
02

Whether the Court of Appeal should interfere with the dismissal of the review application

Holding

No. The dismissal of the suit for want of prosecution followed the appellants' failure to comply with directions for over two years, and their explanation for the delay was found farcical; the Judge's exercise of discretion disclosed no error warranting interference.

Reasoning

Applying the Mbogo v Shah principle and the Ivita guidelines on inordinate delay, the court found the appellants had failed to enjoin themselves as directed and had allowed the matter to remain unresolved for almost thirteen years. The explanation that the delay was occasioned by their advocate's movement between law firms and engagement in election matters did not justify the delay or excuse the prejudice.

p. 3

Legal principles established

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  • Lack of jurisdiction by the court that made an order is not an error apparent on the face of the record capable of correction on review; it can only be corrected on appeal
  • A party cannot raise on appeal, or through review, a challenge to a ruling by a judge whom it could only have appealed against; review cannot be used to introduce an appeal through the backdoor
  • An appellate court will not interfere with the exercise of a trial judge's discretion unless the judge misdirected himself and thereby arrived at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong
  • Although the High Court and the specialised courts are of the same status, they have different jurisdictions flowing from Article 165(5) of the Constitution

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 165(5)
  • Constitution of KenyaArticle 162(2)
  • Civil Procedure RulesOrder 45 rule 1
  • Environment and Land Court ActSection 13
  • Environment and Land Court ActSection 2

Cases cited (8)

  • Abasi Belinda vs. Fredrick Kangwamu & another
    (1963) EA 557
  • The Owners of the Motor Vessel Lilian 'S' vs. Caltex Kenya Ltd
    (1989) KLR 1
  • Benjamin Leonard Macfoy United Africa Company Limited
    [1962] AC 152
  • Republic vs. Karisa Chengo & 2 others
    [2017] eKLR
  • Patrick Kangethe vs. Co-operative Bank of Kenya
    CA No. 83 of 2016
  • National Bank of Kenya Ltd vs. Ndungu Njau
    [1997] eKLR
  • Ngwambu Ivita vs. Akton Mutua Kyumbu
    [1984] KLR 441
  • Mbogo vs. Shah
    EALR 1968
On appeal from
High Court of Kenya at Nairobi (Environment and Land Court)
ELC No. 225 of 2011
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court in civil matters (Constitution of Kenya, Art. 164); not expressly cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Julius Ochieng Oloo & another v Lilian Wanjiku Gitonga [2019] KECA 343 (KLR)", Case Analysis (2019). Civil Appeal No. 148 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/343/eng@2019-09-27

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