Bartera Moiyo v Christopher Kuto [2020] KEELC 532 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the trial magistrate could decline to hear the review because he was not the magistrate who made the order
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
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.
Whether there was an error apparent on the face of the record justifying review
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
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.
Whether the inordinate delay defeated the review application
The 5-year delay was inordinate and the explanation of changed advocates was insufficient
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs to the respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.