Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated on the face of the ruling (application dated 10th December, 2014 in the suit)· [2015] KEELC 221 (KLR)

Jaguar Petroleum Company Limited v Brighton Foods Limited & another [2015] KEELC 221 (KLR)

High Court of Kenya
22 June 2015
2,416 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The High Court in Mombasa ruled that complaints about a judge's legal mistakes belong on appeal, not in review applications, though a fresh hearing was ordered.

What this practically means

#

Executive summary

#
The applicant, plaintiff in the suit, moved the High Court at Mombasa by a notice of motion dated 10th December, 2014 under Order 40 rule 7, Order 45 rule 1, Order 50 rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking stay of orders made by Mukunya J on 30th October 2014 (issued 10th November 2014), their review and setting aside, and a de novo hearing of her notice of motion dated 4th September 2014. She argued that the judge erred in directing the CID to investigate a purely civil matter, contravening articles 157(4) and 245(4) and (5) of the Constitution, and in varying Gacheru J's injunctive orders suo motu without any application under Order 40 rule 7. The respondents opposed, contending the grounds amounted to appeal points, citing Nyamogo v Kogo and Ahmed Hassan Mulji. Omollo J held that an alleged error of law or constitutional contravention is not an 'error apparent on the face of the record' under Order 45, and a court of concurrent jurisdiction cannot correct such an error; that remedy lies on appeal. The date discrepancy on the extracted order was held to be the extracting party's error, correctable without affecting the order. The court declined prayers 3 and 4 but, finding the investigation order independent of the suit, varied it so the CID investigations do not bar prosecution of the suit, and granted prayer 5, ordering the application of 4th September 2014 to be heard de novo. Each party was ordered to bear its own costs.

Key legal issues

#
01

Whether the alleged contravention of articles 157(4) and 245(4) and (5) of the Constitution in ordering CID investigations amounted to an error apparent on the face of the record

Holding

It did not; an alleged error of law or ultra vires action is a ground of appeal, not review, and a court of concurrent jurisdiction cannot correct it

Reasoning

The court reasoned that 'error apparent on the face of the record' under Order 45 does not encompass a mere erroneous view of the law or an allegedly unconstitutional order. If the judge erred or acted contrary to the Constitution, the remedy is appeal, not review, since the reviewing judge shares concurrent jurisdiction with Mukunya J and cannot sit in appeal over his decision.

p. 3
02

Whether the variation of Gacheru J's injunctive orders suo motu without an application under Order 40 rule 7 was a ground for review

Holding

No; whether the judge wrongly decided a matter not prayed for is not a ground for review

Reasoning

Relying on Abasi Balinda v Fredrick Kangwamu and Nyamogo v Kogo, the court held that a wrong decision or erroneous view of law, even deciding a matter not before the judge, is a ground of appeal. It was not within the reviewing court's purview to find that Mukunya J was wrong, the parties sharing concurrent jurisdiction.

p. 4
03

Whether the discrepancy in the date on the extracted order was a ground for review

Holding

The date discrepancy was an error, but it was made by the party who extracted the order, not the judge, and did not affect the final order

Reasoning

The court agreed the date difference constituted an error but found it did not affect the substance of the order. The date of issue is when the extracted order is signed and released by the deputy registrar and need not match the delivery date of the ruling; the dates should simply be corrected.

p. 4
04

Whether the direction that the application of 4th September 2014 be heard de novo pending CID investigations should stand

Holding

Partially varied: investigations may proceed but shall not bar prosecution of the suit and application; the application to be heard de novo

Reasoning

The court found the investigation order independent of the suit and therefore should not stay its hearing. On that basis only, it varied the judge's order so investigations do not bar prosecution of the application and suit, and granted prayer 5 for the 4th September 2014 motion to be heard afresh.

p. 4

Legal principles established

#
  • A point which may be a good ground of appeal may not be a ground for an application for review; an erroneous view of evidence or law is not a ground for review
  • A court of concurrent jurisdiction cannot correct an alleged error of law by another judge; such a complaint lies on appeal

Court orders

#
  1. 1.Prayers 3 and 4 of the motion dated 10th December, 2014 (stay and review/setting aside of the orders of 10th November, 2014) declined
  2. 2.Prayer 5 granted: the hearing of the application dated 4th September, 2014 to proceed de novo
  3. 3.The CID investigations ordered by Mukunya J may proceed but shall not bar the suit and application from being prosecuted
  4. 4.Each party to bear their own costs of the application

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 rule 7
  • Civil Procedure RulesOrder 45 rule 1
  • Civil Procedure RulesOrder 50 rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticles 157(4), 245(4) and (5)
  • Judicature ActNot specified

Cases cited (4)

  • Abasi Balunda –Vs- Fredrick Kangamu & Another
    (1963) EA 557
  • Nyamogo and Nyamogo vs Moses Kip Kolum Kogo
    (2001) EA 170
  • Ahmed Hassan Mulji –Vs- Shirnbai Jadavji
    (1963) EA 217
  • Mucuha -Vs- The Riples Ltd
    Court of Appeal C. App. No. Nairobi 186 of 1992
Jurisdiction invoked
Order 40 rule 7; Order 45 rule 1; Order 50 rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jaguar Petroleum Company Limited v Brighton Foods Limited & another [2015] KEELC 221 (KLR)", Case Analysis (2015). Not stated on the face of the ruling (application dated 10th December, 2014 in the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/221/eng@2015-06-22

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