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Court of AppealDismissedCivil Appeal No. 270 of 2002

Mumby’s Food Products & 2 others v Co-operative Merchant Bank Limited [2008] KECA 237 (KLR)

Court of Appeal of Kenya
8 February 2008
SBS. E. O. BosireEGE. M. GithinjiWDW. S. Deverell
1,538 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you cannot use a review application to raise new legal arguments you should have raised earlier - that's an appeal's job.

What this practically means

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Executive summary

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The Court of Appeal dismissed an appeal against a ruling of Hewett J (8th March 2001) refusing to review the judge's earlier orders of 13th November 2000, which had struck out the appellants' defence and the 1st appellant's counter-claim and entered judgment for Co-operative Merchant Bank Ltd. The bank had sued on a charge over L.R. Dagoretti/Uthiru/T.71 securing a Shs.2,000,000 loan and on guarantees by the 2nd and 3rd appellants, obtaining summary disposition under Order VI Rule 13(1)(b) and (d) CPR on the basis that the defence was frivolous and sham. The appellants then sought review under section 80 of the Civil Procedure Act, arguing that the charge lacked the special acknowledgement required by section 65(1) of the Registered Land Act concerning the chargor's understanding of section 74, rendering the secured sums irrecoverable. The Court of Appeal, applying its decision in National Bank of Kenya Ltd v Ndungu Njau, held that review exists only to correct apparent, self-evident errors or omissions on the part of the court, and that an erroneous conclusion of law or misconstruction of a statute is a ground of appeal, not review. Although the court accepted that section 65(1) RLA applied and that the prescribed form contained the acknowledgement, it held the point was a new point of law which the appellants had failed to plead under Order VI Rule 4(1) CPR and had not argued in opposing the striking-out application. Its discovery was not sufficient ground for review. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the non-compliance with section 65(1) of the Registered Land Act (absence of a special acknowledgement regarding the effect of section 74 RLA) constituted sufficient cause or ground for review of the orders of 13th November 2000
  2. 2.Whether a point of law not raised or argued before the judge in the original application may be raised for the first time in a review application

Key legal issues

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01

Scope of the review jurisdiction under Order XLIV of the Civil Procedure Rules

Holding

Review is limited to correcting apparent, self-evident errors or omissions on the part of the court; it is not a route to re-argue points of law that were available but not raised, nor to challenge a judge's erroneous legal conclusion.

Reasoning

The court restated the principles from National Bank of Kenya Ltd v Ndungu Njau: the error or omission must be self-evident and not require elaborate argument. Another judge taking a different view, or the court proceeding on an incorrect exposition of the law, does not ground review. Misconstruing a statute cannot be a ground for review, so the appellant's statutory argument belonged on appeal, not review.

p. 3
02

Whether non-compliance with section 65(1) RLA amounted to sufficient cause for review

Holding

No. The point was a new point of law that should have been pleaded under Order VI Rule 4(1) CPR and argued in opposing the striking-out application; raising it for the first time on review is impermissible.

Reasoning

The court accepted that the charge, being registered under the RLA, required the special acknowledgement under section 65(1) RLA, and that the prescribed form RL9 contains it. But the appellants' defence and counter-claim had not pleaded the alleged illegality, so the judge was correct to find that the review application sought to re-open the matter with a new point of law, which is not permissible under the review rules.

p. 3

Legal principles established

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  • A review lies only to correct an apparent error or omission on the part of the court that is self-evident; an erroneous exposition of the law or misconstruction of a statute is not a ground for review.
  • Discovery of a new point of law that could have been pleaded and argued earlier is not sufficient ground for review.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
EG
majority
WD
majority
On appeal from
High Court of Kenya at Nairobi (Milimani)
H.C.C.C. No. 604 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal against the High Court ruling dismissing an application for review (Civil Appeal No. 270 of 2002)

Relief refused

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Setting aside of the High Court ruling of 8th March 2001 dismissing the review application

The point of law based on section 65(1) RLA was new and had not been pleaded or argued in opposition to the striking-out application, and cannot be a ground for review

p. 3

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Misconstruing a statute or other provisions of law cannot be a ground for review
p. 3Limits of the review jurisdiction
The discovery of such a new point of law is not a sufficient ground for reviewing the previous decision.
p. 3New points of law and review
In the result, the appeal is unmeritorious. We dismiss it with costs to the respondent.
p. 3Disposition

Issues in the judgment

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minor

The judgment states the appeal is against a ruling dated 8th March 2001 dismissing review of orders 'of 13th November, 2001', but elsewhere the same orders are dated 13th November, 2000; the 2001 date appears to be a typographical error

minor

The charge is inconsistently described as registered on 20th January 1995 in the High Court ruling quoted, on 26th January 1995 in the plaint narrative, and again as registered on 26th January 1995 in the Court of Appeal's analysis

minor

The charged land is referred to variously as Dagoretti/Uthiru/T.71 and Dagoretti/Uthiru/J.71 within the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mumby’s Food Products & 2 others v Co-operative Merchant Bank Limited [2008] KECA 237 (KLR)", Case Analysis (2008). Civil Appeal No. 270 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/237/eng@2008-02-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.