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Court of AppealDismissedCivil Appeal No. 368 of 2014· [2020] KECA 633 (KLR)

Multichoice (kenya) Ltd v Wananchi Group (kenya) Limited & 2 others

Court of Appeal
22 May 2020
William OukoW. OukoASAsike-MakhandiaPKP.O. KiageSKS. Gatembu KairuFSF. Sichale
10,821 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~43 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that filing a notice of appeal does not block you from asking the same court to review its own decision.

What this practically means

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Executive summary

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A five-judge bench of the Court of Appeal was constituted to resolve an apparent conflict in the Court's decisions on whether the filing of a notice of appeal bars an application for review under Order 45 of the Civil Procedure Rules. The appeal arose from a ruling of Mumbi Ngugi, J. in the High Court, which refused Multichoice's application to review paragraph 78 of a judgment in a constitutional petition brought by Wananchi Group against the Communications Commission of Kenya and the Kenya Broadcasting Corporation concerning digital broadcasting migration and locked set-top boxes. Before the High Court, Multichoice had already filed a notice of appeal, prompting the argument that its review application was incompetent. Writing for a unanimous bench, Ouko, P. traced the authorities from Motel Schwetser (1955) onward and held that a notice of appeal is only a formal notification of an intention to appeal; an appeal is preferred only upon lodgment of the record of appeal under Rule 82 of the Court of Appeal Rules. The deeming language of Order 42 rule 6(4) treats a notice of appeal as an appeal solely for stay-of-execution applications. Only Kisya Investments and Tanjal Investments had taken the contrary view, and the Court declined to follow them, endorsing the predominant line of authority. The Court further held that no error apparent on the face of the record justified review of paragraph 78; an erroneous conclusion of law is a ground of appeal, not of review. The Court also outlined the proper circumstances for constituting a five-judge bench. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Whether a notice of appeal bars an application for review under Order 45

Holding

It does not. Review is available to a person aggrieved by a decree or order from which no appeal has been preferred; a notice of appeal is only an expression of intention to appeal and an appeal is preferred only when the record of appeal is lodged under Rule 82.

Reasoning

Section 80 of the Civil Procedure Act and Order 45 rule 1 entitle a party to review only where no appeal has been preferred. Rule 75 notices merely evince intention; Rules 82-87 show that institution of an appeal requires lodgment of the memorandum and record of appeal, fees and security. The deeming in Order 42 rule 6(4) is a statutory fiction confined to stay applications. Only Kisya Investments and Tanjal Investments departed from the long line of authority; the predominant and correct position is that the mere filing of a notice of appeal does not bar review.

p. 7
02

Whether the High Court erred in refusing to review paragraph 78 of its judgment

Holding

No error apparent on the face of the record was established; the Judge correctly applied the principles of review and the appeal attacks the judgment, not the exercise of discretion refusing review.

Reasoning

The grounds of review are discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason. An apparent error must be self-evident and not require elaborate argument. The Judge's determination on set-top boxes was reached on the law and evidence before her; if erroneous, the remedy was appeal, not review. The appellant's grounds were directed at the judgment itself, so no basis existed to interfere with the exercise of discretion.

p. 12
03

The correct practice for constituting a five-judge bench in the Court of Appeal

Holding

Extraordinary benches are convened by the President of the Court, principally where the Court is asked to depart from its own decision or to resolve conflicting decisions.

Reasoning

Since 1954 the impaneling of five-judge benches has rested with the President of the Court. Section 5(3)(i) of the Appellate Jurisdiction Act and section 13(1)(b) of the Court of Appeal (Organization and Administration) Act ground the practice; no rules fixing bench numbers have been made, so impaneling remains a matter of practice. This bench was properly constituted to resolve the perceived conflict between Kisya Investments and the consistent line of authority on Order 45.

p. 2

Legal principles established

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  • A notice of appeal is only a formal notification of an intention to appeal and does not constitute preferment of an appeal; its lodging does not bar an application for review under Order 45 of the Civil Procedure Rules.
  • An appeal is instituted only when the record of appeal, memorandum of appeal, fees and security are lodged under Rule 82 of the Court of Appeal Rules; where a full appeal has been instituted, review and appeal cannot be pursued simultaneously and the appeal must first be withdrawn.
  • A notice of appeal is deemed to be an appeal only for the limited purpose of applications for stay of execution or injunctions under Rule 5(2)(b) and Order 42 rule 6(4).
  • An error apparent on the face of the record for purposes of review must be self-evident, prima facie visible and not require elaborate argument; an erroneous conclusion of law is a ground of appeal, not of review.
  • The circumstances for constituting a five-judge (extraordinary) bench of the Court of Appeal are where the Court is asked to depart from its own previous decision, or to resolve conflicting opinions of the Court; the impaneling of benches rests with the President of the Court under section 13(1)(b) of the Court of Appeal (Organization and Administration) Act.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondents
On appeal from
High Court at Nairobi (Constitutional and Human Rights Division)
Petition No. 98 of 2012
Jurisdiction invoked
First appeal from the High Court under the Court of Appeal's appellate jurisdiction; appeal constituted before a five-judge bench under section 13(1)(b) of the Court of Appeal (Organization and Administration) Act and section 5(3)(i) of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Multichoice (kenya) Ltd v Wananchi Group (kenya) Limited & 2 others", Case Analysis (2020). Civil Appeal No. 368 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/633/eng@2020-05-22

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