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. 38 of 2016

Samson Ngugi Ichungwa t/a Grenair v National Industrial Credit Bank & 2 others [2019] KECA 558 (KLR)

Court of Appeal of Kenya
5 July 2019
4,887 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed that review is not a second chance to re-argue a lost case—wrong decisions should be appealed, not reviewed.

What this practically means

#

Executive summary

#
This interlocutory appeal arose from a ruling of Ogola, J in HCCC No. 86 of 2010 disposing of three consolidated applications. The appellant had charged Kikuyu/Kikuyu Block 1/48 and 1/55 to National Industrial Credit Bank; on his default the chargee exercised its statutory power of sale and the properties were auctioned on 9th February 2010 and transferred to Raju Dhanani. Dhanani obtained an interlocutory judgment on his undefended counter-claim for possession, mesne profits and damages. The appellant's application to set aside that judgment failed, and his subsequent application for review under Order 45 was dismissed on the footing that alleged misdirection in discretion is a ground of appeal, not review. The second application, by Dhanani for security for costs, was found unnecessary given the interlocutory judgment. The third, by the chargee and the auctioneer, succeeded: the Judge found the appellant's suit spent, overtaken by events and res judicata, prior unappealed rulings having upheld the sale. The Court of Appeal, in a unanimous judgment by Waki, Nambuye and Asike-Makhandia, JJ.A, dismissed the appeal with costs. Applying Mbogo v Shah and the Wambora review principles, it held that review of discretion is not a second appeal and that an erroneous conclusion of law is a ground for appeal, not review. It affirmed that res judicata bars issues that ought to have been raised earlier, and that the appellant's prayers were spent. The High Court ruling was affirmed and the suit's pending proceedings remain stayed in consequence of the dismissal.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial judge erred in dismissing the appellant's application seeking review of the interlocutory judgment entered on 14th February 2014
  2. 2.Whether the appellant's suit is spent and or overtaken by events
  3. 3.Whether the trial court exercised its discretion judiciously

Key legal issues

#
01

Whether the refusal to review the order declining to set aside the interlocutory judgment was erroneous

Holding

The appeal on the review application fails; the appellant did not meet the Order 45 thresholds and wrong exercise of discretion is a ground of appeal, not review

Reasoning

The appellant failed to file a defence to the counter-claim within time and without leave, so the counter-claim succeeded undefended. His complaints about the setting-aside ruling were re-arguments already considered by the judge. The court applied the Supreme Court's Wambora principles on review of discretionary decisions and Origo v Mungala, holding that alleged misdirection in discretion belongs to appeal, not review.

p. 4
02

Whether the appellant's suit is spent, overtaken by events and res judicata

Holding

The suit is spent and res judicata; unchallenged prior rulings had upheld the statutory power of sale and confirmed the validity of the auction sale and transfer

Reasoning

Rulings by Kimaru, J and Koome, J in HCCC No. 287 of 2009 and HCCC No. 592 of 2008 upheld the chargee's right to sell and the validity of the 9th February 2010 auction. Those rulings were never appealed or set aside, so they remain binding. The prayers in the present suit sought to relitigate those conclusively determined issues, attracting res judicata, whose rationale is finality in litigation.

p. 5
03

Whether the trial court exercised its discretion judiciously

Holding

Yes; the appellate court will not interfere with a discretion exercised on judicious grounds

Reasoning

The Judge found the High Court had not deviated from applicable principles nor exercised discretion wrongly or unjustly. Following Mbogo v Shah, an appellate court interferes only where discretion was exercised capriciously or on wrong principles. No such misdirection was demonstrated here, so the ruling stands.

p. 2

Legal principles established

#
  • An erroneous conclusion of law or evidence is a ground for appeal, not for review; once a party elects review instead of appeal, they reach a dead end
  • Review of the exercise of discretion is not an appeal or a chance to re-argue an application; the applicant must show the court erred in exercising its discretion
  • Res judicata bars not only issues directly in issue between the same parties but also issues that ought to have been raised

Court orders

#
  1. 1.The appeal is dismissed with costs to the respondents

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 86 of 2010 (ruling dated 31st July 2015)
Jurisdiction invoked
First appeal from the High Court under the Court of Appeal's appellate jurisdiction; interlocutory appeal heard together with a rule 5(2)(b) application under the Court of Appeal Rules

Relief refused

#

Review/vary/set aside of the High Court ruling of 31st July 2015 dismissing the appellant's application for review of the interlocutory judgment

The appellant failed to demonstrate that the trial court misdirected itself in the exercise of discretion; a good ground for appeal is not a good ground for review

p. 4

Setting aside the finding that the appellant's suit is spent, overtaken by events and res judicata

Prior unchallenged rulings upheld the chargee's statutory power of sale and the validity of the auction sale, rendering the prayers in the suit spent

p. 5

Costs

Appeal dismissed with costs to the respondents

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It has often been stated that a good ground for appeal may not necessarily be a good ground for review.
p. 4Review vs appeal
The upshot is that this appeal ought to be dismissed with costs to the respondents for want of merit. It is so ordered.
p. 5Final orders and costs
The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court.
p. 5Res judicata rationale
In the circumstances, the argument that proprietary rights over property ought not to be determined through interlocutory judgment becomes untenable and would not constitute 'other sufficient reason' for purposes of review.
p. 4Interlocutory judgment and review grounds

Issues in the judgment

#
minor

The judgment inconsistently dates the interlocutory judgment as 4th February 2014 in the narrative and 14th February 2014 in the issues for determination

minor

The date of the public auction is given as 9th February 2010 in most of the judgment but as 9th February 2019 in the 1st respondent's submissions as recorded

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samson Ngugi Ichungwa t/a Grenair v National Industrial Credit Bank & 2 others [2019] KECA 558 (KLR)", Case Analysis (2019). Civil Appeal No. 38 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/558/eng@2019-07-05

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