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Court of AppealDismissedCivil Appeal No. 171 of 2015· [2020] KECA 569 (KLR)

Violet Merab Songa & 2others v Stanley Mugacha t/a Galaxy Auctioneers & another [2020] KECA 569 (KLR)

Court of Appeal
19 June 2020
2,464 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 you cannot use a review application to relitigate arguments a court has already rejected—you must appeal instead.

What this practically means

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Executive summary

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This was a first appeal against a High Court decision (Waweru J.) dismissing the appellants' application to review and set aside a ruling of 19th July 2013 in which the learned Judge ordered that an auctioneer's costs be paid by the appellants. The dispute arose from the enforcement of an arbitral award in favour of the appellants, administrators of the estate of the late David Oyallo Songa, a founding partner of Songa Ogoda & Associates. The appellants instructed Galaxy Auctioneers to proclaim the respondents' property under warrants of attachment, but the respondents obtained a stay of execution, triggering a dispute over who bore the auctioneer's fees. The appellants sought review under Order 45, rules 1 and 2 of the Civil Procedure Rules, alleging non-disclosure of material facts, including the pendency of Misc. Application No. 195 of 2010 challenging the arbitral award. The High Court found no new and important matter, no mistake or error apparent on the face of the record, and no other sufficient reason for review, holding that the decree-holders were seeking a second bite at the cherry. The Court of Appeal identified the sole issue as whether the Judge properly exercised his discretion in declining to grant review. Applying Mbogo v Shah and the first-appeal principles in Abok James Odera v Machira, the court held that the issues raised in the review application had already been canvassed and dismissed; there was no error apparent on the face of the record and no newly discovered matter. Citing Pancras T. Swai v Kenya Breweries and Abasi Belinda v Frederick Kangwamu, the court reiterated that an erroneous conclusion of law or evidence is a ground of appeal, not of review. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether the High Court properly exercised its discretion in dismissing the application for review of the ruling of 19th July 2013

Holding

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

Reasoning

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.

p. 2
02

Whether alleged factual matters and claimed violations of Rule 7 of the Auctioneers Rules could found a review rather than an appeal

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal was dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 45, rules 1 and 2
  • Civil Procedure RulesOrder 45
  • Auctioneers ActRule 7 of the Auctioneers Rules, 1997

Cases cited (7)

  • Nyamogo & Nyamogo v. Kogo
    (2001) EA 170
  • Mbogo v. Shah
    (1968) EA 93
  • Abok James Odera & Associates v. John Patrick Machira t/a Machira & Co. Advocates
    (2013) eKLR
  • Kenya Ports Authority versus Kustron (Kenya) Limited
    2000 2EA 212
  • Pancras T. Swai v. Kenya Breweries Limited
    [2014] eKLR
  • Francis Origo & another v. Jacob Kumali Mungala
    C.A. Civil Appeal No.149 of 2001 (unreported)
  • Abasi Belinda v. Frederick Kangwamu and another
    [1963] E.A. 557
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

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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, "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.