Mohamed Ali Issak v Garissa Maize Millers
The bottom line
#A Kenyan court refused to revive a 12-year-old land case, confirming that disagreement with a ruling is grounds for appeal, not review.
What this practically means
#Executive summary
#Key legal issues
#Whether the court's Ruling of June 24, 2022 contained an error apparent on the face of the record warranting review
No; the court had exercised its discretion judiciously in dismissing the reinstatement application, and disagreement with that discretion is not an apparent error
Applying Nyamogo & Nyamogo v Kogo, the court held that where the original decision is a possible view, it cannot be an error apparent on the face of the record. The issues raised in the review application were the same ones raised and determined in the earlier application, so no new matter or apparent error existed.
Whether there was sufficient cause or other sufficient reason to review the determination
No; the suit had been in court for 12 years, this was the second reinstatement application, and the matter had not proceeded substantially since filing
The court weighed the history of delay against the applicant's right to be heard. Given the age of the suit, the repeated reinstatement applications and lack of substantive progress, the discretion earlier exercised was judicious and there was no sufficient reason to disturb it.
Whether the mistake of counsel should be visited upon the client so as to justify reinstatement
The court reaffirmed that cases belong to parties, not advocates, and a client aggrieved by counsel's conduct may sue for professional negligence
Relying on Tana & Athi Rivers Development Authority v Jeremiah Kimigho Mwakio and Patriotic Guards Ltd v James Kipchirchir Sambu, the court held that legal business must be conducted efficiently and courts can no longer indulge negligent conduct of litigation as in a more leisured age.
Legal principles established
#- A review lies only for discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, applied for without unreasonable delay
- A mere erroneous decision or possible alternative view is not an error apparent on the face of the record; such error must stare one in the face with no two opinions reasonably possible
- Suits belong to parties, not advocates; a client who believes counsel acted contrary to instructions may sue for professional negligence
Court orders
#- 1.The application dated June 29, 2022 seeking review, variation and/or setting aside of the Ruling dated June 24, 2022 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Inherent review jurisdiction under Order 45(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Ali Issak v Garissa Maize Millers", Case Analysis (2022). Environment & Land Case 18 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12674/eng@2022-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.