Aneriko M. Simiyu v Redempta Simati
The bottom line
#Kenya's Court of Appeal confirmed that courts can correct obvious mistakes in their own records through review, even after delivering a final ruling.
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 hearing a second application for review contrary to Order 44 of the Civil Procedure Rules
- 2.Whether Sergon, J. sat on appeal over a ruling of a judge of cognate jurisdiction by reversing Mbito, J.'s orders
- 3.Whether the delay in bringing the application for review was inordinate
- 4.Whether the court could act on affidavit evidence rather than oral evidence, and whether it relied on extraneous evidence
- 5.Whether the court was functus officio when moved to correct mistakes apparent on the face of the record
Key legal issues
#Scope of review jurisdiction under Order 44 of the Civil Procedure Rules
Errors apparent on the face of the record entitled the High Court to exercise its review powers; the second review did not offend Order 44.
The court found that the vesting order and subsequent mutation brought parcel East Bukusu/South Kanduyi/15 into proceedings that never concerned it, through apparently exparte proceedings involving court officials. These constituted errors apparent on the face of the record, squarely within the review jurisdiction as captured in National Bank of Kenya vs Ndungu Njai.
Whether review amounted to sitting on appeal over a judge of cognate jurisdiction
It did not; the judge was correcting a mistake on the record, not appealing Mbito, J.'s ruling.
The court held that Sergon, J. handled the situation admirably in ending a suspicious mutation and subdivision that involved court officials, transactions ordinarily handled by the lands office and survey office. Correcting such errors by way of review is not appellate interference with a concurrent judge's decision.
Functus officio and affidavit evidence in review
A court is not functus officio when correcting mistakes apparent on the face of the record; review is decided on affidavit evidence.
The court rejected the appellant's submissions that the judge needed oral evidence and that the court was functus officio. Review applications are invariably dealt with on affidavit evidence, and the court below relied solely on the record. Refusing correction of an apparent mistake would result in injustice.
Legal principles established
#- A court is not functus officio when moved to correct a mistake apparent on the face of the record, as refusing such correction would result in injustice.
- Review applications are dealt with on affidavit evidence, not oral evidence.
- Review under Order 44 lies where there are errors apparent on the face of the record, and exercising it does not amount to sitting on appeal over a ruling of a judge of cognate jurisdiction.
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 Bungoma
- Jurisdiction invoked
- First appellate jurisdiction over a High Court ruling on review under Order XLIV of the Civil Procedure Rules
Relief refused
#All grounds of appeal seeking to set aside the High Court ruling of 23rd July 2004
The review was within the ambit of the review jurisdiction; errors apparent on the face of the record entitled the court to 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.
We are of the view that these two errors entitled the court to exercise its powers of review under order 44 of the Civil Procedure Rules
it cannot be correct that a court of law would be said to be functus officio when moved to correct a mistake or mistakes apparent on the face of the record because the ultimate result would be injustice
Review applications are invariably dealt with by the courts on the basis of affidavit evidence
Accordingly, the appeal is hereby dismissed with costs to the respondent.
Issues in the judgment
#Inconsistent parcel numbers and acreages in the factual narrative
Inconsistent dates for the order set aside on review
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aneriko M. Simiyu v Redempta Simati", Case Analysis (2010). Civil Appeal 227 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/473/eng@2010-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.