Lawrence Wachira Mbothu v Ephantus Macharia Mbothu [2016] KEELC 542 (KLR)

High Court of Kenya

17 August 2016

LWL N Waithaka

1,904 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~8 min to read original · ~4 min brief

The bottom line

Kenya's High Court confirmed you cannot use a review application to re-argue a lost case — a genuine appeal is the only route for challenging how a judge decided.

What this practically means

Executive summary

The applicant, Lawrence Wachira Mbothu, moved the High Court at Nyeri by an application dated 21st December 2012 seeking review or setting aside of all the proceedings and orders in Nyeri HCCA No. 159 of 2002, an appeal from Murang'a SPM's Succession Cause No. 73 of 1992 concerning the estate of Mbothu Manga. He argued that the estate had already been distributed in Murang'a SPM Succession Cause No. 21 of 1972, rendering the later proceedings res judicata, and that he lost the appeal only because his former advocate failed to produce the 1972 proceedings; he also feared eviction from suit properties on which his family had developed. The respondent opposed, asserting the parties had by consent agreed all distribution issues be decided in the 1992 cause, that the orders had not been appealed, and that the application was an inordinate-delay attempt to appeal through the back door. Waithaka J applied National Bank of Kenya v Ndungu Njau and Abasi Belinda v Frederick Kangwamu, reiterating that an erroneous view of evidence or law is a ground of appeal, not review, and that a court cannot sit in appeal on its own judgment. The court found the res judicata question and the effect of the parties' consent had already been squarely considered by Makhandia J, and noted the applicant never actually annexed the 1972 proceedings. Finding no error apparent on the face of the record or other sufficient cause, the court dismissed the application with costs to the respondent.

Key legal issues

Whether the failure of the applicant's former advocate to produce the proceedings in Murang'a SPM Succession Cause No. 21 of 1972 constitutes sufficient cause for review

Holding

No - the High Court judgment did not rest solely on the failure to produce the proceedings but also on the consent recorded by the parties in the 1992 cause agreeing that the entire estate be distributed therein; this is not a ground for review.

Reasoning

The judge examined the High Court judgment of Makhandia J and found the res judicata question and the effect of the parties' consent were already considered. Since the applicant was not appealing that determination, he could not re-litigate it through review. Review cannot be used as a second bite at the cherry or to introduce evidence that could have been adduced at the hearing.

p. 3

Whether there is an error apparent on the face of the record warranting review

Holding

None found; the application was dismissed.

Reasoning

Applying National Bank of Kenya v Ndungu Njau and Abasi Belinda v Frederick Kangwamu, the court held that an erroneous view of evidence or law is a ground of appeal, not review, and that a court cannot sit in appeal on its own judgment. The applicant also failed to actually annex the proceedings he sought to introduce.

p. 4

Legal principles established

A review lies only to correct an apparent error or omission on the part of the court; an erroneous conclusion of law or a different view another judge could take are grounds for appeal, not review
A court cannot sit in appeal on its own judgment; a point that is a good ground of appeal may not be a ground for review

Court orders

1.The application for review or setting aside of the judgment and orders in Nyeri HCCA No. 159 of 2002 is dismissed
2.Costs of the application awarded to the respondent

Authorities

Legislation

Code of Civil Procedure (Chittaley & Rao, 4th Edn, Vol. 3)Commentary on distinction between review and appeal

Cases cited (2)

National Bank of Kenya Limited v. Ndungu Njau
Civil Appeal No. 211 of 1996 (unreported)
Abasi Belinda v. Frederick Kangwamu and another
[1963] E.A. 557

Jurisdiction invoked: Inherent review jurisdiction over its own orders; principles in Order 45 review jurisprudence as stated in National Bank of Kenya Ltd v Ndungu Njau

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Lawrence Wachira Mbothu v Ephantus Macharia Mbothu [2016] KEELC 542 (KLR)", Case Analysis (2016). Nyeri HCCA No. 159 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/542/eng@2016-08-17

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