Violet Merab Songa & 2others v Stanley Mugacha t/a Galaxy Auctioneers & another [2020] KECA 569 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that you cannot use a review application to relitigate arguments a court has already rejected—you must appeal instead.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court properly exercised its discretion in dismissing the application for review of the ruling of 19th July 2013
The Judge properly exercised his discretion; the appellants were attempting 'a second bite at the cherry' and there was no new and important matter, no error apparent on the face of the record, and no sufficient reason warranting review
The court applied Order 45 of the Civil Procedure Rules and the Mbogo v Shah threshold for interference with discretion. It found the issues raised in the review application had already been canvassed before and dismissed by the learned Judge, so no error apparent on the face of the record or discovery of new matter existed. The application fell below the Mbogo v Shah threshold and the Judge's dismissal of it was proper.
Whether alleged factual matters and claimed violations of Rule 7 of the Auctioneers Rules could found a review rather than an appeal
No; an erroneous view of evidence or law is a ground of appeal, not a ground of review, and matters of fact raised before the Court of Appeal could not be entertained on review
Relying on Pancras T. Swai v Kenya Breweries, Francis Origo v Jacob Kumali Mungala and Abasi Belinda v Frederick Kangwamu, the court held that once a party opts for review rather than appeal on alleged errors of law or evidence, they proceed in the wrong direction. The appellants had extensively pointed out issues of fact which the Court could not delve into on a review application.
Legal principles established
#- A Court of Appeal should not interfere with the exercise of a judge's discretion unless the judge misdirected himself and arrived at a wrong decision, or it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion
- An erroneous conclusion of law or of evidence is a ground of appeal, not a ground of review
- On a first appeal, the Court of Appeal re-evaluates, re-assesses and re-analyses the evidence on the record and draws its own conclusions, while making allowance for having neither seen nor heard the witnesses
Court orders
#- 1.The appeal was dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Application No. 227 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over decisions of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Violet Merab Songa & 2others v Stanley Mugacha t/a Galaxy Auctioneers & another [2020] KECA 569 (KLR)", Case Analysis (2020). Civil Appeal No. 171 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/569/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.