Joshua Otieno Buyu v Petro Ochieng Wasambwa [2003] KECA 164 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if a judgment can be appealed, you must appeal it—review is the wrong remedy.
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 failure to cite the correct enabling provision (Order XLIV rule 1(1)) in the notice of motion for review was fatal to the application.
- 2.Whether the appellant demonstrated a mistake or error apparent on the face of the record, or any other ground for review under Order XLIV rule 1(1), in respect of the judgment of 20th July 1999.
- 3.Whether the learned judge of the superior court erred in dismissing the application for review on 22nd May 2000.
- 4.Whether an application for review, rather than an appeal, was the appropriate remedy against the judgment of 20th July 1999.
Key legal issues
#Whether omission of the correct enabling provision in the notice of motion for review was fatal to the application.
No. Although the motion sought a review of judgment but invoked sections 3A, 63 and 80 of the Civil Procedure Act and Order XXXIX rather than Order XLIV rule 1(1), Order L rule 12 bars refusal of an application merely because its enabling provision was not stated.
The motion sought review of judgment, so the substantive rule engaged was Order XLIV rule 1(1), yet other provisions were cited. The court held that under Order L rule 12 the requirement to state the enabling provision is directory: no objection may be taken and no application refused merely for non-compliance. The defect went to form only, so the court proceeded to consider the application on its merits under the correct rule.
What an applicant for review must demonstrate under Order XLIV rule 1(1) of the Civil Procedure Rules.
The applicant must show discovery of new and important matter or evidence which due diligence could not have produced when the decree was passed, or a mistake or error apparent on the face of the record, or any other sufficient reason, applying without unreasonable delay.
Restating the rule, the court treated these as the prerequisites for disturbing a decree or order by way of review. Counsel for the appellant relied solely on error apparent on the face of the record, contending that a judgment founded on the District Land Registrar's report rendered the proceedings a nullity. Weighed against the whole background of the dispute, that submission established no error capable of impugning either the judgment or the ruling refusing review.
Whether review, rather than an appeal, was the proper remedy against the judgment of 20th July 1999.
Review was the wrong route. The appellant might have had an arguable appeal against the one-line judgment, but having chosen an application for review he could not obtain the relief he wanted.
The court reasoned that a party aggrieved by a judgment from which an appeal lies should appeal; review under Order XLIV rule 1(1)(a) is premised on there being no appeal, or none preferred. The judgment of 20th July 1999 was appealable, so the alleged defects, including reliance on the Land Registrar's report, could only be ventilated on appeal. The choice of remedy therefore defeated the application regardless of its underlying merit.
Whether Wambilyangah J erred in dismissing the application for review on 22nd May 2000.
He did not. Having considered the background leading to the judgment and to the ruling, the Court of Appeal found nothing to fault in the refusal of review.
This reflects appellate deference to the trial judge's exercise of discretion on the review application. The court reviewed the history: the consent order directing the Land Registrar's boundary report, counsel's statement on 20th July 1999 that the report placed the defendant's house on the plaintiff's land, and the judgment that followed. On that material the court could not say the judge was wrong to reject the application, and no error apparent on the record was demonstrated.
Legal principles established
#- Failure to state, in a notice of motion, the order or statutory provision under which the application is made is not fatal; no application shall be refused merely by reason of that omission (Order L rule 12, Civil Procedure Rules).
- An applicant for review must establish discovery of new and important matter or evidence which due diligence could not have produced at the time of the decree, or a mistake or error apparent on the face of the record, or any other sufficient reason, and must apply without unreasonable delay.
- Where the judgment or order complained of is one against which an appeal lies, an application for review is the wrong remedy; the aggrieved party should prefer an appeal.
Court orders
#- 1.Appeal dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Not stated in the judgment; the appeal lies to the Court of Appeal from a ruling of the High Court (Wambilyangah J) dismissing an application for review of judgment, the motion itself having been said to be brought under sections 3A, 63 and 80 of the Civil Procedure Act and provisions of the Civil Procedure Rules.
Relief refused
#Allowance of the appeal and remission of the matter to the superior court, as sought by the appellant.
The court found the judge could not be faulted in rejecting the review application and that the appellant had chosen the wrong remedy; an appeal against the judgment of 20th July 1999, not review, was the proper route.
Review and setting aside of the judgment of 20th July 1999.
No ground for review under Order XLIV rule 1(1) was made out; in particular, no error apparent on the face of the record was established.
Costs
The appeal was dismissed with costs.
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.
That being our view of this appeal, it follows that this appeal must and is hereby dismissed with costs.
Every order, rule or other statutory provision under or by virtue of which any application is made must ordinarily be stated, but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.
In an application for review, an applicant has to show that there has been discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge and could not be produced at the time the decree was passed or on account of some mistake or error apparent on the face of the record or any other suficient reason.
On our part, all we can say is that the appellant might have had an arguable appeal had he filed an appeal against the one line judgment of 20th July, 1999 but the route chosen (application for review) was certainly the wrong one.
Issues in the judgment
#The enabling provisions of the notice of motion are quoted inconsistently in the judgment: the motion is first described as brought under 'order 39 rules 1,2 and 3 ... and order 50 rule 2 of the Civil Procedure Rules', but is later stated to have been brought under 'order XXXIX rules 1,2 and 3 of the Civil Procedure Rules, order L rule 2 of the Civil Procedure Rules' - Order 50 rule 2 and Order L rule 2 each appear only once.
The certified copy of the judgment provided carries no appeal number or neutral citation; the case is identified only by the parties' names and the Kisumu delivery endorsement, which may impede corpus matching.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Otieno Buyu v Petro Ochieng Wasambwa [2003] KECA 164 (KLR)", Case Analysis (2003). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/164/eng@2003-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.