Josphat Munke Ole Mpoe v David Waiganjo Koinange & CFC Stanbic Bank Limited (Cause 190 of 2015) [2015] KEELRC 113 (KLR)
The bottom line
#A Kenyan court dismissed a financier's attempt to revisit an earlier ruling, confirming that disagreements with a judge's legal reasoning belong in an appeal, not a review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ruling of 3rd July 2015 contains an error apparent on the face of the record warranting review
- 2.Whether the hire purchase agreement, being for Kshs. 4.3 million above the statutory ceiling, falls outside the Hire Purchase Act such that non-registration does not render it unenforceable
- 3.Whether the application is competent absent a certified copy of the order sought to be reviewed
- 4.Whether the alleged auction sale of the motor vehicle took place
Key legal issues
#Error apparent on the face of the record as a ground of review
The objection that the court failed to appreciate Section 3(1) of the Hire Purchase Act and the monetary ceiling is not a self-evident error but a matter for appeal; the review application fails
The court applied the established test that an error on the face of the record must be glaring and require no long-drawn reasoning. Disagreement with a judge's construction of a statute, or the fact that another judge might decide differently, is not reviewable. The proper remedy is an appeal, otherwise the court would be sitting on appeal over its own ruling. The objector's authorities on the monetary threshold were considerations that could have been raised earlier and are matters of argument, not visible error.
Competency of the review application
The application was attacked as defective for want of an annexed certified copy of the order sought to be reviewed
Relying on Damaris Wangechi Kariuki v Johnson Muturi Muchemi, the respondent submitted that a decree or order sought to be reviewed must be extracted and a certified copy annexed; failing that there is nothing to review. The court records this as part of the respondent's attack on the application in its written submissions.
Legal principles established
#- An error apparent on the face of the record must be obvious, self-evident and require no elaborate argument; a mere erroneous decision, misapprehension of law or wrongful exercise of discretion is a ground of appeal, not review
- A court cannot review its own decision on grounds that amount to an appeal against it
Court orders
#- 1.The Objector's application dated 15th July 2015 is dismissed
- 2.Costs of the application awarded to the claimant/respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Review jurisdiction over the court's own order (Order 45 Rule 1(1) of the Civil Procedure Rules as invoked in the submissions)
Relief refused
#Stay of execution of attachment and sale of motor vehicle KTCB 393L; release of the vehicle; setting aside/raising of attachment; review and setting aside of the order of 3rd July 2015
No error apparent on the face of the record was established; the complaint discloses a case for appeal, not review, and no certified copy of the order sought to be reviewed was annexed
Costs
Application dismissed with costs to the claimant/respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There must be an error apparent on the face of the record. This would have to be an obvious and visible error which would not require much effort to establish from the record. It does not call for elaborate analysis of law or facts to establish.
A look at the case for the applicant this discloses more of a case for appeal than review. I am therefore inclined to dismiss this application with costs to the claimant/respondent.
The elaborate submissions and pleadings by the objector do not bring out a case for review and or setting aside of the orders of court as prayed.
Issues in the judgment
#The judgment misstates the respondent's submission on error on the face of the record, omitting a negation: it says the error 'requires further research' where the surrounding context and the authorities indicate it should read 'does not require further research'
Inconsistent party role labels: the objector is referred to variously as 'she', 'he' and 'his', and the claimant as 'he' and 'his', making the parties' identities and genders ambiguous
Contradictory reporting of who alleged the auction was fraudulent: the passage attributed to the objector's submissions refers to 'The affidavit filed and served by the Objector of the respondent's Agent', and the narrative says the dishonesty allegation was made against the claimant but was 'not clearly articulated in evidence'
Appearances list describes Mr. Kanyi as acting for the 'Claimant/Applicant' although the claimant is the respondent to the application
Contradiction between the objector's claim of joint ownership (which would make the vehicle unavailable for attachment) and the objector's own case that the vehicle 'vests in the objector' under the unregistered hire purchase agreement
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Munke Ole Mpoe v David Waiganjo Koinange & CFC Stanbic Bank Limited (Cause 190 of 2015) [2015] KEELRC 113 (KLR)", Case Analysis (2015). Application dated 15th July, 2015 (in Objector Proceedings following ruling of 3rd July, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/113/eng@2015-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.