Mary Muthoni Ngari v Joseph Ngari Kamau & 6 others [2020] KEELC 1821 (KLR)
The bottom line
#A Kenyan court refused to rewrite a land judgment because review only fixes obvious errors, not decisions a party simply dislikes.
What this practically means
#Executive summary
#Key legal issues
#What constitutes an error apparent on the face of the record for purposes of review
The applicant's complaint that the judgment would necessitate a succession cause is not an error apparent on the face of the record but a disagreement with an erroneous view, which is a matter for appeal
The court adopted the test in Nyamogo & Nyamogo v Kogo that only a patent, self-evident error which requires no elaborate argument qualifies. The applicant's ground rested on the inconvenience of a succession cause, i.e. arguments and/or correction of an erroneous view taken by the Court. Such grievances fall on appeal, not review under Order 45 Rule 1 CPR.
Whether the death of the 1st defendant during the pendency of the suit and the need to avoid a succession cause constitute 'new and important matter' or 'other sufficient reason' for review
No - the death was known to the applicant during the hearing and the prospect of succession proceedings is not a ground for review
The respondents showed the deceased died on 6th November 2016 while the suit was ongoing and the claim against him was withdrawn with the applicant's counsel's knowledge. The death was therefore not new matter discovered after the decree, nor could the convenience of avoiding succession proceedings constitute 'other sufficient reason'. Review may not be used to re-open or re-hear the case.
Whether the court can vary its own judgment so as to sit on appeal over itself
A court cannot, on review, change its decision; that would amount to sitting on appeal of its own decision
Relying on the respondents' submissions and the Evan Bwire v Andrew Nginda authority, the court held that Order 45 CPR does not allow a party to ask the court to change its judgment; review is confined to correction of patent error, not re-determination of issues already decided. The applicant failed to bring herself within any of the three statutory grounds.
Legal principles established
#- An error apparent on the face of the record must be self-evident and not require elaborate argument; a mere erroneous decision or wrong view is a ground for appeal, not review
- An application for review will only be allowed on very strong grounds, particularly where its effect would be to re-open the case
Court orders
#- 1.The Notice of Motion dated 12th November 2019 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review of judgment/decree)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Muthoni Ngari v Joseph Ngari Kamau & 6 others [2020] KEELC 1821 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 12th November, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1821/eng@2020-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.