Jaguar Petroleum Company Limited v Brighton Foods Limited & another [2015] KEELC 221 (KLR)
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
#Key legal issues
#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
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
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.
Whether the variation of Gacheru J's injunctive orders suo motu without an application under Order 40 rule 7 was a ground for review
No; whether the judge wrongly decided a matter not prayed for is not a ground for review
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.
Whether the discrepancy in the date on the extracted order was a ground for review
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
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.
Whether the direction that the application of 4th September 2014 be heard de novo pending CID investigations should stand
Partially varied: investigations may proceed but shall not bar prosecution of the suit and application; the application to be heard de novo
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.
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.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.Prayer 5 granted: the hearing of the application dated 4th September, 2014 to proceed de novo
- 3.The CID investigations ordered by Mukunya J may proceed but shall not bar the suit and application from being prosecuted
- 4.Each party to bear their own costs of the application
- 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.