MACHAKOS RANCHING CO. LTD vs WAEMA ITUMO MUOKA [1999] KECA 119 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that review is not a second chance to appeal — you cannot re-litigate a decided case just because you dislike the outcome.
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 High Court judge erred in refusing to review his judgment on the ground that the police abstract did not show the appellant was owner of the vehicle
- 2.Whether the alleged lack of authority of the driver to carry passengers was a ground for review rather than a ground of appeal
Key legal issues
#Discovery of new and important matter as a ground for review
The ownership issue could not found a review because the director of the appellant knew or should have known the true ownership, so the matter was not beyond the appellant's knowledge despite due diligence.
Order 44 rule 1 permits review only where new matter or evidence, after exercise of due diligence, was not within the applicant's knowledge or could not be produced when the decree was made. The plaint alleged the appellant owned the vehicle, the amended defence did not deny it, and a director of the company would have known the true position. The ground therefore failed.
Error apparent on the face of the record
There was no mistake apparent on the face of the judgment because ownership of the vehicle was never in issue in the superior court.
The appellant argued a mistake on the face of the judgment regarding ownership, but the court held that ownership was not contested: it was pleaded in the plaint and not denied in the amended defence. A matter not in issue before the trial court cannot constitute an error on the face of its record.
Distinction between grounds of appeal and grounds of review
An alleged lack of authority of the driver to carry passengers was a matter for appeal, not for review.
The judgment of the superior court recorded that both counsel had agreed on the issue of liability. The appellant's complaint about the driver's instructions or authority was therefore a matter that could have been pursued on appeal; it did not fall within the grounds for review under section 80 of the Civil Procedure Act and Order 44 rule 1.
Legal principles established
#- A matter that could properly be raised as a ground of appeal cannot be a ground for review under section 80 of the Civil Procedure Act and Order 44 rule 1.
- An allegation in a plaint not denied in the defence is admitted, and a party with knowledge of the true facts cannot claim discovery of new matter on that issue.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Machakos
- H.C.C.C. No. 303 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Civil Procedure Act (appeal from the order of the High Court refusing review)
Relief refused
#Review of the High Court judgment and dismissal of Civil Case No. 314 of 1994
Ownership of the vehicle was never in issue and was admitted in the pleadings; the alleged lack of driver authority was at most a ground of appeal, not a ground for review
Costs
The appeal is dismissed with costs to the 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.
In any event this could be a ground for appeal but it cannot be a ground for review.
He should have known that the vehicle belonged to him if that was the case and not to the defendant. So this could not be a matter which was beyond his knowledge.
the ownership of the vehicle was never in issue in the superior court.
We do not see any merit in the appeal and therefore dismiss it with costs.
Issues in the judgment
#The judgment refers to the review application seeking dismissal of Civil Case No. 314 of 1994 while the appeal is from H.C.C.C. No. 303 of 1994; the relationship between the two case numbers is not explained in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Director General, National Environmental Management Authority & 3 others; Maasai Mara Lemek Landowners Conservancy Limited & another (Exparte Applicants) (Environment and Land Judicial Review Case E002 of 2024) [2024] KEELC 5096 (KLR)[2024] KEELC 5096 (KLR)4 Jul 2024
- Samwel Njehia Gitau v Joyce Wanjiku [2014] KEELC 587 (KLR)[2014] KEELC 587 (KLR)23 May 2014followed
Cite this brief
#Cite this brief
Caselaw, "MACHAKOS RANCHING CO. LTD vs WAEMA ITUMO MUOKA [1999] KECA 119 (KLR)", Case Analysis (1999). Civil Appeal No. 266 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/119/eng@1999-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.