Samuel Ogodo Waga v Fish Processors (2000) Ltd [2014] KECA 379 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a litigant's second appeal, confirming that review applications must strictly meet Order 45 requirements and comply with court procedure.
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 misdirected himself in dismissing the appellant's application for review of the judgment dismissing his appeal against the ruling on leave to amend the defence
- 2.Whether the Judge applied the correct principles in dealing with the review application under Order 45 of the Civil Procedure Rules
- 3.Whether the original plaint in the subordinate court was defective, fatal and incompetent
- 4.Whether findings on costs were erroneous
Key legal issues
#Scope of a second appeal
A second appeal is confined to matters of law; findings of fact by the two courts below are not open for reconsideration.
The court invoked Section 72 of the Civil Procedure Act and case law, stating that its duty on a second appeal is to consider only issues of law, factual findings made by the two lower courts being outside its remit. The appellant's complaints were largely directed at procedural and discretionary rulings already considered by two courts.
Conditions for review under Order 45
A review applicant must bring himself within the conditions of Order 45; failure to attach the impugned order and absence of new matter or sufficient reason are fatal.
The court endorsed the High Court's analysis that the review application raised no new issues not touched by the judgment, and that the applicant failed to attach the impugned decree or order as required by Order 45(1). The matters the appellant sought to raise, including the competence of the plaint, had been within his knowledge during the earlier appeal and were matters for the trial court.
Discretion in procedural non-compliance
The magistrate properly exercised discretion in allowing the appellant an opportunity to cure defects in his application to amend rather than dismissing it, and the appellant's refusal to comply could not ground a successful appeal.
The court observed that the magistrate could have dismissed the apparently incompetent application but instead granted the appellant a chance to comply with procedural steps. The appellant chose the appeal route instead of complying. The court emphasized that rules of procedure secure fairness, expeditious disposal and equality between parties, and compliance with the order would have saved judicial time and expense.
Legal principles established
#- On a second appeal, the Court of Appeal considers only issues of law, not matters of fact decided by the two courts below.
- An applicant for review must satisfy the conditions in Order 45 of the Civil Procedure Rules, including discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, applied for without unreasonable delay.
- Rules of procedure exist to facilitate the realization of the values and objectives of the Judiciary, guarantee fairness between contending parties, ensure expeditious disposal of disputes and prevent parties being ambushed.
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 Kisumu
- Kisumu HCCC No. 184 of 2011
- Jurisdiction invoked
- Second appeal under Section 72 of the Civil Procedure Act (issues of law only)
Relief refused
#Setting aside or varying the High Court Ruling of 31st October 2012 dismissing the application for review
No new matter or evidence had been discovered and no sufficient reason existed for a favourable exercise of discretion
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 have considered the whole appeal before us and can see no fault in the way the learned judge dealt with the application before him for review. No new matter or evidence had been discovered and there was no sufficient or any reason upon which the court would have exercised its discretion favourably for the appellant. The appeal is without merit and we dismiss it with costs to the respondent.
Our duty, on a second appeal such as this one, is to consider only issues of law and not matters of fact which have been considered by the two courts below and findings made
It is through rules of procedure that a party knows the precise case it has to meet or answer, without being ambushed or taken by surprise by the opposite party.
Issues in the judgment
#The judgment is dated 19th September 2014 in the delivery clause, whereas the appeal is said to have been heard on 18th June 2014 and the Ruling appealed from is dated 31st October 2012 described as provoking this appeal; the hearing and delivery dates are consistent internally but the notice of appeal is described as 'dated and filed... on 31st October, 2012'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Ogodo Waga v Fish Processors (2000) Ltd [2014] KECA 379 (KLR)", Case Analysis (2014). Civil Appeal No. 358 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/379/eng@2014-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.