Julius Ochieng Oloo & another v Lilian Wanjiku Gitonga [2019] KECA 343 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the Court of Appeal should interfere with the dismissal of the review application
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.