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Court of AppealDismissedMotion dated April 16, 2020 (arising from PMCC No. 76 of 2014, Nyamira)· [2021] KECA 364 (KLR)

Ndubi v Standard Ltd (Civil Application 74 of 2019) [2021] KECA 364 (KLR)

Court of Appeal of Kenya
19 March 2021
2,496 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed it will only review its own rulings in exceptional cases, and dismissed this bid with costs.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Kiage, JA, with Sichale and J. Mohammed, JJ A concurring) dismissing a motion dated April 16, 2020 by Alfred Mincha Ndubi seeking review of the Court's ruling of April 3, 2020, which had dismissed his application for stay of execution pending appeal in a matter arising from PMCC No. 76 of 2014, Nyamira. The applicant had been paid a decretal sum which the respondent sought to recover, and he complained that the April 2020 ruling was defective because only one judge (J. Mohammed, JA) wrote it, Okwengu, JA merely concurred online, and Githinji, JA had retired after hearing the application; he also claimed each judge must write a separate ruling and objected to online delivery via Skype as foreign to Kenyan law. The court held that review of concluded decisions is available only in exceptional circumstances where finality would work injustice, that it is even less inclined to revisit interlocutory rulings, and that no error apparent on the record existed - an erroneous conclusion of law being a matter for appeal, not review, per National Bank of Kenya Ltd v Ndungu Njau. On rule 32(3), the court held that where a judge delays, dies, ceases to hold office (including by retirement) or is incapacitated, the remaining judges give the judgment; single judgments with brief concurrences are permissible where the decision is unanimous, and concurring judgments may be as brief as a single sentence. Online delivery was proper under the Covid-19 practice directions. The court also admonished counsel for intemperate attacks on the court's dignity. The application was dismissed with costs.

Key legal issues

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01

Whether the Court of Appeal has jurisdiction to review its own rulings, and on what terms

Holding

Review is not provided for in the Court's rules and is entertained only in exceptional circumstances where finality would work injustice; it must never be a knee-jerk response to decisions that do not flatter a party.

Reasoning

The court reiterated its constant refrain that reviews of concluded decisions are exceptional, citing Mohammed Jawayd Iqbal v George Boniface Mbogua and Benjoh Amalgamated Ltd v Kenya Commercial Bank Ltd. The court must act cautiously and in compelling cases, with the burden on the applicant. Interlocutory rulings warrant even greater reluctance, since the court's core business is hearing appeals proper, not repeated interlocutory skirmishes.

p. 6
02

Whether delivery of the ruling by two judges after Githinji, JA's retirement, and online via Skype, was lawful

Holding

Yes. Rule 32(3) expressly contemplates that a judge may delay, die, cease to hold office or be incapacitated, in which case the remaining judges give the judgment of the court; online delivery was proper in the context of the Covid-19 pandemic practice directions.

Reasoning

The court held that while rule 32(3) requires each judge to render a separate decision as a matter of course, there is room for single judgments where the decision is unanimous and the presiding judge so directs. The rule does not prescribe the form of concurring judgments. Retirement is a contemplated cessation of office, and the two remaining judges acted squarely within the rule. Online delivery complied with Gazette Notice No. 3137 of March 20, 2020.

p. 6
03

Whether each judge must write a separate ruling or judgment for the development of jurisprudence

Holding

No. Concurring judgments may be as brief as a single sentence; for a simple, settled matter such as a stay application under rule 5(2)(b), a judge need not restate reasoning already fully covered by the leading judgment.

Reasoning

The court characterised the stay application as an ordinary, unremarkable matter governed by notorious principles that can be recited by rote. Okwengu, JA's brief concurrence was therefore proper: there was nothing to add with utility to what J. Mohammed, JA had written. The demand for independent reasoning in every case was misplaced and misconceived.

p. 6
04

Whether the applicant's claims of error apparent on the face of the record justified review

Holding

No. There were no errors of law, and in any event an incorrect proposition or erroneous conclusion of law is not a ground for review but a matter for appeal.

Reasoning

Relying on National Bank of Kenya Ltd v Ndungu Njau as approved in Adopt A Light Ltd v City Council of Nairobi, the court held that the applicant's complaints went to the merits of the stay decision, not to any reviewable error. The claim that the stay principles were restated but misapplied was described as mischievous and mendacious, smacking of discourtesy to the judge and the court.

p. 7

Legal principles established

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  • Review of judgments in concluded appeals is available only in exceptional circumstances, and the burden lies on the applicant to justify it.
  • Interlocutory rulings of the Court of Appeal should be even less amenable to review than judgments, since the court exists to determine appeals proper.
  • Under rule 32(3) of the Court of Appeal Rules, where one judge delays, dies, ceases to hold office (including by retirement) or is incapacitated, the remaining members of the court may give the judgment of the court, and a single judgment with concurrences is permissible where the decision is unanimous and the presiding judge so directs.
  • It is not a party's place to dictate the manner in which the court organises its business, including which judges sit or write judgments.
  • An erroneous conclusion of law is not a ground for review; the proper recourse is appeal, per National Bank of Kenya Ltd v Ndungu Njau.
  • Counsel owe the court a duty of courtesy and respect, and intemperate attacks on the court bring the profession into disrepute.

Court orders

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  1. 1.Dismissal of the applicant's motion dated April 16, 2020 seeking review of the ruling of April 3, 2020
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3
  • Cap 9 (Appellate Jurisdiction Act)Section 3(2)
  • Court of Appeal RulesRule 31
  • Court of Appeal RulesRule 32(3)
  • Court of Appeal RulesRule 32(4)
  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • National Bank of Kenya Ltd v Ndungu Njau
    [1997] eKLR
  • Adopt A Light Ltd v City Council of Nairobi
    [2019] eKLR
  • Mohammed Jawayd Iqbal (personal Representative of the Estate of the Late Ghulam Rasool Jammohamed) v George Boniface Mbogua
    [2020] eKLR
  • Benjoh Amalgamated Ltd & another v Kenya Commercial Bank Ltd
    [2014]
On appeal from
Court of Appeal of Kenya
Ruling dated April 3, 2020 (arising from PMCC No. 76 of 2014, Nyamira)
Jurisdiction invoked
Section 3 of Act No. 28 of 2015 (Appellate Jurisdiction Act) and section 3(2) of Cap 9, with rules 31, 32(3), (4), 41 and 42 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Ndubi v Standard Ltd (Civil Application 74 of 2019) [2021] KECA 364 (KLR)", Case Analysis (2021). Motion dated April 16, 2020 (arising from PMCC No. 76 of 2014, Nyamira). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/364/eng@2021-03-19

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