LawAfrica -Hot From The Bench

When does a right of review arise?

When one searches for Review decisions in LawAfrica Law Reports, on notices that the number of applications for review being dismissed in the Milimani Commercial Courts has risen exponentially these last two years. In this week's Hot From The Bench LawAfrica's Charles Kanjama takes a closer look at Order 44 and the right of review to determine when it arises and what are its chances of success.

It is a platitude in the esoteric corridors of law that our judges have often not been well advised by counsel. It is also trite knowledge that applications for review under section 80 of the Civil Procedure Act are an indictment of most of the participants in the judicial process. Mbaluto J, who has suffered the indignity of handling several misplaced applications for review, can barely restrain his frustration in New Era Oil v Colgate Palmolive Ltd. He caustically remarks, “this application is hopelessly misconceived and cannot possibly succeed.” On the other hand, one cannot help being puzzled by Khamoni J in Chege Mbitiru v Municipal Council of Nyahururu. He tries to excuse a patent error on the face of his judgment by calling it ‘a small technical problem’ that is simply a matter of interpretation and not one for review under Order XLIV.

In Flora Wasike v Wamboko the court held that a consent can be varied or discharged if obtained by fraud or collusion, by an agreement contrary to the policy of the court, if given without sufficient material facts or in general for a reason that would allow the court to set aside an agreement. Later the same court in Easter Transportation Limited v Red Sea Star Co. Ltd held, while doubting the possibility of reviewing a consent order on final judgment, “attractive as it might be to review the consent order, that cannot be done under Order XLIV.” It seemed surprising in view of Kimita v Wakibiru where the court had already considered the possibility of review of a consent order and allowed an application because the applicants were illiterate and had been misled by the respondent.

In Kimita, the court went ahead to hold that the phrase “for any other sufficient reason” as a ground for review need not be analogous with the other grounds specified in Order XLIV (i.e. discovery of new matter or error on the face of the record). It is interesting to note that several decisions of the High Court refusing applications for review, such as Extracraft Agencies v Baragwi, still seem to construe this phrase ejusdem generis.

One of the interesting areas of conflict is in relation to errors resulting from misapplication of law. In National Bank of Kenya v Ndungu Njau the Appeal Court held in 1997 that an erroneous conclusion of law is a good ground for appeal but not for review. However, recently in Said Hemed v Karisa Maitha the court with Akiwumi still on the bench held that the right to review given by section 80 requires the learned judge to consider a review application where an appeal lies but none has been filed. See also Fidelity Bank v Hussein where Ransley held that an error of law can give rise to an error on the face of the record. In contrast, in a recent High Court ruling of Mbaluto J in Fidelity Bank v Shah he held that an application for review must fall within the purview of the grounds given in Order XLIV and that misapplication of the law was not one of these.

Some grounds that have founded successful applications for review include failure to consider a relevant statute (Lawi Kiplagat v Delphis Bank), concealment of facts by one of the parties (Joash v HFCK) and extravagance of an order for maintenance (Githaiga v Githaiga).

In review applications, the courts have also been troubled with the question of jurisdiction to entertain the review. Way back in 1982, the Court of Appeal in Kithoi v Kioko held that an appellate judgment of the High Court under section 71A(2) is final and therefore not subject to review. Three years later in Haamzaali v Sulemanji the court held that a decision of the High Court under section 79B rejecting an appeal summarily is subject to review since it is a new cause of action. Then in Odongo v Savings and Loan the Court held that the High Court had no jurisdiction to review its appellate decisions under the Rent Restriction Act because these decisions were final; the finality of an appeal cannot be set at nought by review, Apaloo held.

In Earnest Mwai v Hashid the Appeal Court affirmed that it had no power to review its own decisions. Then in Easter Transportation, Platt concluded that the High Court had no inherent power, except under section 80 and Order XLIV, to review its own decision. However in Sapra Studio v Kenya National Properties the court interpreted rule 35 of the Appeal Court Rules as diverting from the English practice that a court is functus officio once a decision is passed; in Kenya, the Appeal Court would in effect have power to set aside or alter its order even after a decree has been drawn up. This reasoning, as it relates to the High Court power of review, has been followed in Njuguna v Njuguna and recently in Said Hemed v Karisa Maitha.

It remains to be seen whether the High Court will acknowledge its jurisdiction to entertain review applications under its appellate jurisdiction, and also in its original jurisdiction where there is a right of appeal to the Court of Appeal. One is also curious whether the High Court will eventually admit jurisdiction to review errors in a judgment resulting from a misapplication of law, and how this will be reconciled with the need for finality of litigation.

Cases cited in this analysis:

Parties LLR citation Court citation
1. Chege Mbitiru v Nyahururu Council [2000] LLR 1097
2. David Ruthi v Mungai [1992] LLR 2365 (CAK)
3. Earnest Mwai v Hashid [1995] LLR 2523 (CAK)
4. Easter Transportation v Red Sea Star [1986] LLR 1312 (CAK)
5. Extracraft Agencies v Baragwi [1999] LLR 837 (CCK)
6. Fidelity Bank v Hussein [1998] LLR 150 (CCK)
7. Fidelity Bank v Shah [1998] LLR 760 (CCK)
8. Flora Wasike v Wamboko [1984] LLR 215 (CAK)
9. Githaiga v Githaiga [1982] LLR 62 (CAK)
10. Haamzaali v Sulemanji [1985] LLR 1403 (CAK)
11. Wa Mangoli v HFCK [2000] LLR 628 (CCK)
12. Kimita v Wakibiru [1985] LLR 246 (CAK)
13. Kithoi v Kioko [1981] LLR 1228 (CAK)
14. Lawi Kiplagat v Delphis Bank [1999] LLR 2618 (CAK)
15. National Bank v Ndungu Njau [1996] LLR 469 (CAK)
16. New Era Oil v Colgate Palmolive Ltd [1998] LLR 1038 (CCK)
17. Njuguna v Njuguna [1997] LLR 602 (CAK)
18. Odongo v Savings and Loan [1987] LLR 1479 (CAK)
19. Said Hemed v Karisa Maitha [1999] LLR 1069 (CAK)
20. Sapra Studio v K.N.P. [1985] LLR 243 (CAK)