Harold Kidem Mganga & 1 other v Constance Mwai Mtoto
The bottom line
#Kenya's Court of Appeal confirmed that you cannot use a review application to re-litigate issues like service of summons that fall outside review grounds.
What this practically means
#Executive summary
#Key legal issues
#Scope of an application for review under Order XLIV rule 1
Only the statutory grounds for review are available; issues outside those grounds cannot be raised on appeal from a review ruling.
The Court set out the full text of Order XLIV rule 1 and held that the appellants were required to demonstrate discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason. Having considered the history of the matter, the Court found the application for review was properly rejected both by the Magistrate's Court and by the High Court on appeal. The issues of service and the Attorney General's liability were held to be beyond review.
Effective service of summons on the second appellant through the first
Service on the first appellant for and on behalf of his employee (the second appellant), whose course of employment gave rise to the claim, was sufficient and effective - affirmed.
Although the Court held the service issue was beyond review, it went on to consider it and found clear evidence that summons had been effected on both appellants. It endorsed the High Court's finding, quoting Etyang', J, that service on the first appellant on behalf of his employee in whose course of employment the cause of action arose was sufficient and effective service.
Absolution of the Attorney General from liability at formal proof
The trial Magistrate was entitled to absolve the Attorney General where the plaintiff's evidence did not implicate the Government vehicle, which was stationary; affirmed.
The trial Magistrate, after formal proof, found the plaintiff's evidence put no blame on the third defendant whose vehicle was stationary on the side of the road. The High Court and this Court held there was no proof the Attorney General had been served before interlocutory judgment, so the default judgment bound only the first and second appellants, and absolution occasioned the appellants no prejudice, the claim having been settled by the insurance company.
Legal principles established
#- An applicant for review bears the burden of establishing one of the grounds in Order XLIV rule 1: discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason.
- Issues falling outside the scope of an application for review - such as the regularity of service and the liability of a party absolved at formal proof - cannot be re-litigated through a review or an appeal from a review ruling.
Court orders
#- 1.The appeal be and is hereby dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.A. No. 95 of 2001
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court exercising appellate jurisdiction (per the Court of Appeal Act; no specific provision quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Be Energy Limited v Kyms Liquor Store (Environment and Land Appeal 3 of 2024) [2025] KEELC 169 (KLR)[2025] KEELC 169 (KLR)21 Jan 2025
- Mwangi Mutahi Ruga v Municipal Council of Nyeri & 1 other[2014] KECA 433 (KLR)30 Jul 2014followed
- Peter Irungu Wainaina v Chege Njihia[2014] KECA 85 (KLR)13 May 2014applied
Cite this brief
#Cite this brief
Caselaw, "Harold Kidem Mganga & 1 other v Constance Mwai Mtoto", Case Analysis (2010). Civil Appeal 244 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/372/eng@2010-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.