Okelo & another v Osonga (Civil Appeal 165 of 1986) [1988] KECA 89 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that the High Court can review its own appeal decisions, and appeals to the Court of Appeal fail without a filed Notice of Appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain the appeal given the existence of Notices of Appeal only against the decision of Masime J and not against the summary rejections by Aganyanya J and Schofield J
- 2.Whether Masime J was right in holding that he had no jurisdiction to entertain the application to reinstate the previously dismissed High Court appeals
- 3.Whether the power of review in the High Court under order 44 rule (1) and section 80 of the Civil Procedure Act is limited to decisions at first instance or extends to decisions on appeal
Key legal issues
#Whether the Court of Appeal could entertain the appeal in the absence of Notices of Appeal against the summary rejections under section 79B
The appeal could only be treated as one against Masime J's decision, since no Notice of Appeal existed against the earlier summary rejections.
The Joint Memorandum of Appeal showed the appeal was against Masime J's decision of 30th May 1985. Although some grounds complained of the summary rejections and the merits, the only Notice of Appeal on record was against Masime J's decision, and the Court held it lacked jurisdiction to entertain appeals against the other decisions.
Whether Masime J had jurisdiction to reinstate the previously dismissed appeals
Masime J erred: the application was in substance one for review, which he should have heard; he wrongly concluded he had no jurisdiction.
Relying on Peter Nzioki v Aron Kivuva Kitusa, the Court held that an application for review may be brought under order 44 or section 80 of the Civil Procedure Act, that review extends to decisions on appeal and not only first-instance decisions, and that dismissal of a review application is appealable as of right under order 42 rule 1(1)(aa). Masime J should therefore have heard the application.
Legal principles established
#- An appeal to the Court of Appeal against a decision of the High Court cannot be entertained without a Notice of Appeal against that decision.
- One judge of the High Court cannot set aside the decision of another judge of equal jurisdiction; the only route is review under order 44 rule (1) of the Civil Procedure Rules or section 80 of the Civil Procedure Act.
- The power of review in the High Court is not limited to decisions at first instance but extends to decisions on appeal, and such a review decision is itself appealable.
Court orders
#- 1.The appeal be allowed with costs in this Court
- 2.The order of Masime J dated 30th May, 1985 refusing to reinstate the appeals is set aside
- 3.The application for review be remitted to the High Court for hearing according to law
- 4.Costs in the High Court hearing to abide the event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment holding that Masime J should have heard the application for review and remitting it to the High Court.
For these reasons I consider Masime J should have heard the application for a review. I would allow the appeal, set aside the order of Masime J and direct that the application for review be remitted for hearing to the High Court according to Law.p. 4
Wrote the judgment
Concurred briefly with the leading judgment, adding nothing.
I agree and have nothing to add.p. 4
Wrote the judgment
Concurred with the reasoned views expressed in the draft judgment of Hancox JA.
I have read the judgment of Hancox JA in draft form. I entirely agree with the reasoned view expressed therein. I have nothing useful to add.p. 4
- On appeal from
- High Court
- Civil Appeals 26A and 26B of 1982 (decision appealed against being that of Masime J of 30th May, 1985)
- Jurisdiction invoked
- Appeal to the Court of Appeal against a decision of the High Court, requiring a Notice of Appeal under the Civil Procedure Rules; appeal as of right under order 42 rule 1(1)(aa) against dismissal of an application for review
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.
It is therefore the validity of Masime J’s refusal to reinstate the earlier appeal which is in question, and ordinarily it is quite impossible for one judge of the High Court to set aside the decision of another judge of equal jurisdiction, whether on appeal, or at first instance.
the position remains that without a Notice of Appeal this court lacks jurisdiction to entertain an appeal against a decision of the High Court.
From the foregoing it would appear that the power of review in the High Court is not limited to reviewing decisions at first instance but includes those on appeal. Such a decision is itself appealable under order 42 rule 1(1) (aa).
As Platt and Gachuhi JJA agree it is ordered that this appeal be allowed with costs in this Court, but that those in the High Court hearing should abide the event.
Issues in the judgment
#The case title of the parties is not stated in the judgment; the parties are identified only as 'the appellants' and 'the respondent' and only the respondent is connected to the school dispute. The title field has been reconstructed from the record description and may be inaccurate.
The record contains an anomaly noted by the court: the cover of the record names Aganyanya J though the appeal is against Masime J's decision, and objection proceedings by a third party were inexplicably included in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okelo & another v Osonga (Civil Appeal 165 of 1986) [1988] KECA 89 (KLR)", Case Analysis (1988). Civil Appeal (as per Joint Memorandum of Appeal against the decision of Masime J of 30th May, 1985; High Court Civil Appeals 26A and 26B of 1982). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/89/eng@1988-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.