Adopt A Light Ltd v City Council of Nairobi (Civil Appeal 301 of 2010) [2019] KECA 726 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that mistakes of law or fact in a court ruling must be challenged on appeal, not through review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Koome, J. misdirected herself in the exercise of her discretion to review the Kimaru, J. ruling
Key legal issues
#Whether the refusal to review the Kimaru, J. ruling amounted to a misdirection in the exercise of discretion
Koome, J. properly exercised her discretion; Kimaru, J. had considered the enforcement motion on its merits, and any perceived error was appealable, not reviewable
The Court evaluated the record and found a proper and reasonable basis for Koome, J.'s conclusion that Kimaru, J. considered the enforcement motion on its merits. Although Kimaru, J. initially conflated the contempt application with the enforcement motion, he expressly stated he would render a decision on the merits of the application and proceeded to do so. The reference to the contempt matter was obiter since no contempt motion had been filed after the grant of leave. Errors of fact or law in such a merits decision are grounds for appeal, not review.
Scope of review for error apparent on the face of the record under section 80 CPA and Order 44 rule 1 CPR
Review cannot be used to correct an erroneous conclusion of law or an erroneous appreciation of material; such errors must be pursued on appeal
Relying on National Bank of Kenya Limited v Ndungu Njau, the Court reaffirmed that a review may be granted only where the error or omission is self-evident and requires no elaborate argument; that another judge could take a different view, or that the court reached an erroneous conclusion of law, is not sufficient. The proposition from Pancras T. Swai that discovery under Order 44 relates to issues of fact, not law, was also invoked by counsel.
Legal principles established
#- A discretionary decision by a judge will not be disturbed on appeal unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong
- An error of fact or law in a judgment or ruling is a ground of appeal, not a ground for review; a court cannot sit on its own judgment to correct its errors
- Misconstruing a statute or other provision of law is not a ground for review under Order 44; review is confined to self-evident errors apparent on the face of the record
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Judicial Review/Commercial division)
- Koome, J. ruling of 21st May, 2010 dismissing application for review of the Kimaru, J. ruling of 27th October, 2009
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's exercise of discretion in a review application (Constitution and Court of Appeal jurisdiction; judgment does not cite a specific provision)
Relief refused
#Appellant's appeal against dismissal of its application for review of the Kimaru, J. ruling
Kimaru, J. considered the motion for enforcement on its merits; any error of fact or law is amenable to appeal, not review
Costs
Appeal dismissed with costs (appellant to pay the respondent's costs)
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.
So long as the discretion is exercised in a judicious manner and upon reason, it cannot be interfered with simply on the ground that if the appellate court was sitting at first instance, it might have given difierent weight to that given by the trial judge
Errors of fact and law made in considering any court matter are amenable to appeal.
This court cannot sit on its own judgment to correct its errors.
Misconstruing a statute or other provision of law cannot be a ground for review.
For the above reasons, we hold that this appeal has no merits and we order that it be and is hereby dismissed with costs.
Issues in the judgment
#The judgment does not state the court case number or the number of the appeal before it; the case number fields are reconstructed from the narrative only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adopt A Light Ltd v City Council of Nairobi (Civil Appeal 301 of 2010) [2019] KECA 726 (KLR)", Case Analysis (2019). Court of Appeal, Civil Appeal (Nairobi) - appeal against dismissal of application for review of the Kimaru, J. ruling of 27th October, 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/726/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.