MWIHOKO HOUSING CO. LTD v EQUITY BUILDING SOCIETY [2007] KECA 473 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that you cannot use a review application to relitigate a losing case—genuine errors must be obvious, and new evidence must truly be new.
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 learned Judge erred in refusing to review his decree of 29th September 1999 notwithstanding alleged errors or mistakes apparent on the face of the record
- 2.Whether there was discovery of new and important matters or evidence which, after due diligence, was not within the knowledge of the appellant when the decree was passed
- 3.Whether the Judge's alleged inconsistent findings between his interlocutory ruling of 24th February 1993 and his final judgment constituted an error apparent on the face of the record justifying review
- 4.Whether the refusal to review occasioned the appellant injustice
Key legal issues
#Scope of 'error apparent on the face of the record' as a ground of review
An error for review purposes must be self-evident on the record; a wrong view of law or a merits finding after full trial does not qualify and must be pursued on appeal
The Court of Appeal reiterated the established test: a review corrects only apparent errors or omissions that need no elaborate argument to establish. The alleged inconsistencies were the trial Judge's findings reached after full consideration of evidence and submissions; a different view by another Judge, or an erroneous legal conclusion, is not a review ground. Counsel's complaint of inconsistent interlocutory and final findings went to the merits, appealable but not reviewable.
Discovery of new and important matter or evidence
The ruling of 24th February 1993 relied on as new evidence was not new: the matters it raised were canvassed, made an issue (issue No. 8) and decided at trial
The appellant relied on a 1993 interlocutory ruling said to have been missing from the file at judgment. The Judge below held it was an interlocutory ruling in an injunction application whose facts were not decisive on their own; the issues of cancellation of sub-division, the transfer, and alleged fraud had been raised during trial, fully canvassed, and decided. The appellate court found due diligence was not shown and no new matter was discovered.
Legal principles established
#- Review lies only to correct an error or omission that is self-evident and requires no elaborate argument to establish; a wrong conclusion of law after a full trial is a ground of appeal, not of review
- Misconstruing a statute or other provision of law, or an erroneous exposition of the law by the court, cannot be a ground for review
- Findings made by a court after a full trial on the merits, even if wrong, are not mistakes or errors envisaged under Order XLIV of the Civil Procedure Rules
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 5992 of 1992 (ruling dated 20th May, 2002)
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory ruling of the High Court (review application under Section 80 of the Civil Procedure Act and Order XLIV Rules 1, 2 and 3 of the Civil Procedure Rules)
Relief refused
#Setting aside of the High Court ruling dismissing the application for review of the decree of 29th September 1999
No new and important matter or evidence was discovered, and no error apparent on the face of the record or other sufficient reason justified review; alleged errors were merits findings correctable only on appeal
Costs
Appeal dismissed with costs (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.
It is trite law, and we reiterate, that a review may be granted whenever the Court considers that it is necessary to correct an apparent error or omission on the part of the court.
The error or omission must be self evident and should not require an elaborate argument to be established.
If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review.
We think that the learned Judge in the court below cannot be faulted and for these reasons we do not find any merit in this appeal which we hereby dismiss with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MWIHOKO HOUSING CO. LTD v EQUITY BUILDING SOCIETY [2007] KECA 473 (KLR)", Case Analysis (2007). Civil Appeal 316 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/473/eng@2007-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.