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ELCDismissedNot stated in the judgment· [2020] KEELC 532 (KLR)

Bartera Moiyo v Christopher Kuto [2020] KEELC 532 (KLR)

High Court of Kenya
25 November 2020
3,583 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that court reviews exist only to fix obvious errors, not to relitigate lost cases, and long unexplained delays will kill a review application.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Eldoret against a ruling of the Kapsabet magistrate's court dated 20th July 2006 dismissing the appellant's application for review of a judgment delivered on 2nd February 1993 in RMCC No. 32 of 1989, a land dispute over acreage allotted by the Settlement Fund Trustees. The appellant raised 14 grounds, condensed to whether the trial magistrate was wrong in declining to hear the review on the basis that only Hon. G. Kinuthia, who had made the order, could review it, and whether the review should have been granted for error apparent on the face of the record. The appellant relied on Order XLIV Rule 4(1) and Section 80 of the Civil Procedure Act. The respondent submitted the review application was filed after more than five years' delay, that the appellant had already failed in an attempt to obtain extension of time to appeal, and that review is an equitable remedy not a second bite at the cherry. The court, applying its first appellate duty, held that the trial magistrate did misconstrue the law in finding only Hon. Kinuthia could hear the review, since Order XLIV Rule 4(1) permits any other magistrate attached to the court to hear it. However, that error did not salvage the appeal: the application sought to re-litigate and introduce fresh evidence rather than correct a self-evident error, and it suffered inordinate delay with an insufficient explanation. The court dismissed the appeal with costs to the respondent.

Key legal issues

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01

Whether the trial magistrate could decline to hear the review because he was not the magistrate who made the order

Holding

The trial magistrate misconstrued the law; when a magistrate who rendered a judgment has left the station, on transfer, no longer in service or deceased, another magistrate may review it

Reasoning

The court held that the procedure is clear: the magistrate who rendered the judgment should review it unless out of station, on transfer, no longer in service or deceased. The magistrate's finding that only Hon. Kinuthia could review was a misconstruction. However, this did not save the appellant, whose application was in substance an attempt to re-litigate rather than a proper review.

p. 4
02

Whether there was an error apparent on the face of the record justifying review

Holding

There was no error apparent on the face of the record; the application sought to re-open the case and introduce fresh evidence, which would amount to sitting on appeal over one's own judgment

Reasoning

The court found the application was not for correction of a self-evident error but required elaborate arguments and fresh evidence, effectively seeking a second bite at the cherry. It adopted the Nyamogo & Nyamogo test that an error must stare one in the face with no two reasonable opinions, and that a possible view adopted by the original court is not a ground for review.

p. 4
03

Whether the inordinate delay defeated the review application

Holding

The 5-year delay was inordinate and the explanation of changed advocates was insufficient

Reasoning

The judgment of 2nd February 1993 was not challenged by review until 7th October 1998. The appellant had also sought extension of time to appeal in the High Court, which was dismissed with costs, and had not appealed further. The court held litigation must come to an end at some point.

p. 5

Legal principles established

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  • A review may only be granted to correct an error or omission that is self-evident and does not require elaborate argument to establish
  • Review and appeal are not simultaneously available to an aggrieved party
  • An erroneous view of evidence or of law is a ground of appeal, not of review
  • Where the magistrate who made an order has left the station, any other magistrate attached to the court may hear the review

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder XLIV Rule 4(1) (as introduced by LN No. 5 of 1996)
  • Civil Procedure RulesOrder 45 Rule 1(a) and (b)
  • Code of Civil Procedure (Chittaley & Rao, 4th Edn) Vol. 3pg 3227

Cases cited (9)

  • Guardian Bank Limited Vs Jetha & Sons & 3 others
    [2004] eKLR
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • National Bank of Kenya Limited Vs Ndun'gu Njau
    [1979] eKLR
  • Bank of Baroda Vs Margaret Njeri Muiruri
    (2004) eKLR
  • Parliamentary Service Commission v Martin Nyaga Wambora & others
    2018 eKLR
  • Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Kenya Ports Authority versus Kusthon (Kenya) Limited
    2000 2EA 212
  • Coffee Board of Kenya V Thika Coffee Mills Limited & 2 Others
    [2014] eKLR
  • Nyamogo & Nyamogo vs. Kogo
    (2001) EA 174
On appeal from
Principal Magistrate's Court, Kapsabet
RMCC No. 32 of 1989 (ruling dated 20th July 2006)
Jurisdiction invoked
First appellate jurisdiction over a subordinate court ruling (duty of a first appellate court to re-evaluate the evidence and the record)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bartera Moiyo v Christopher Kuto [2020] KEELC 532 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/532/eng@2020-11-25

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