Kagunza Adaji v Maiyo & another
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the alleged discrepancies between the Green Card and the title deed constituted an error apparent on the face of the record
They did not; they were complaints about the judge's evaluation of evidence and findings on the merits, which only lie on appeal
The court set out the settled test that an error apparent on the face of the record must be obvious and patent, one that stares one in the face with no possibility of two opinions. The applicant's complaints all concerned how the learned judge exercised his mind on the evidence before him and the findings he made. Such grievances are matters for appeal, not review, since a possible view adopted by the court cannot be an error for review purposes.
Whether there was sufficient reason for the delay in bringing the review application
No; the applicant gave no explanation for the four-and-a-half-year delay, which was inexcusable
The judgment was delivered on December 20, 2017 and the application filed on July 4, 2022, a period of four years and six months. The applicant raised the ground of delay but left it bare, offering no reason the court could analyse as sufficient. The application was only prompted by commencement of execution after warrants of arrest were served, which is not a ground for review.
Whether the misdescription of the applicant as the plaintiff, and procedural lapses in service, could be cured under Article 159(2)(d)
Yes; the court cured the glaring drafting error and moved to the merits, but cautioned that Article 159(2)(d) applies only on a case-by-case basis
The application was drawn on behalf of the 'plaintiff/applicant' yet was clearly brought by the 2nd defendant, as shown by the notice of change of advocates, the supporting affidavit sworn by her and the body of the application. The court applied Article 159(2)(d) to cure the anomaly, while relying on Supreme Court authority that the provision is not a panacea for all procedural shortfalls and must be invoked in limited instances on a case-by-case basis.
Legal principles established
#- A party cannot succeed in an application for review unless they prove discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and the application must be brought without undue delay
- An error apparent on the face of the record must be an obvious and patent mistake, not one established by a long drawn process of reasoning on which there may be two opinions
- Complaints about how a judge evaluated evidence are grounds of appeal, not grounds for review; allowing them would amount to the court sitting on appeal on its own decision
- Article 159(2)(d) of the Constitution is not a panacea for all procedural shortfalls and applies on a case-by-case basis
Court orders
#- 1.The application dated July 4, 2022 is dismissed
- 2.No order as to costs since the respondents did not participate in the application
- Jurisdiction invoked
- Sections 80 and 63(e) of the Civil Procedure Act and Order 45 rule 1(a) and (2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kagunza Adaji v Maiyo & another", Case Analysis (2022). Environment & Land Case 35 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13390/eng@2022-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.