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Court of AppealDismissedCivil Appeal No. 358 of 2012

Samuel Ogodo Waga v Fish Processors (2000) Ltd [2014] KECA 379 (KLR)

Court of Appeal of Kenya
19 September 2014
2,532 words in judgment
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The bottom line

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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

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Executive summary

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This second appeal arose from protracted litigation begun by Fish Processors (2000) Ltd against Samuel Ogodo Waga, its former driver, for repayment of Kshs. 30,000 advanced in the course of employment. Summary judgment was entered against Waga in the Winam Magistrates' Court but was set aside on appeal to the High Court. After the suit was transferred to the Chief Magistrate's Court, Waga sought leave to amend his defence to introduce counter-claims for defamation and commission earnings. The magistrate allowed leave only conditionally, directing Waga to file a compliant amended defence with a verifying affidavit within 14 days. Waga instead appealed to the High Court (Chemitei, J), which dismissed the appeal, and his subsequent application for review was also dismissed on 31st October 2012 for, among other things, failure to attach the impugned order as required by Order 45(1) of the Civil Procedure Rules. The Court of Appeal, comprising Azangalala, Gatembu and Kantai, JJ.A, held that its duty on a second appeal is confined to issues of law. It found no fault in the Judge's handling of the review application: no new matter or evidence had been discovered and no sufficient reason for review existed. The court emphasized the importance of compliance with rules of procedure, noting that the appellant had been accorded considerable discretion by successive judicial officers and that his persistent choice of appeal over compliance wasted judicial time. 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 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. 2.Whether the Judge applied the correct principles in dealing with the review application under Order 45 of the Civil Procedure Rules
  3. 3.Whether the original plaint in the subordinate court was defective, fatal and incompetent
  4. 4.Whether findings on costs were erroneous

Key legal issues

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01

Scope of a second appeal

Holding

A second appeal is confined to matters of law; findings of fact by the two courts below are not open for reconsideration.

Reasoning

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.

p. 3
02

Conditions for review under Order 45

Holding

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.

Reasoning

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.

p. 3
03

Discretion in procedural non-compliance

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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

majority
majority
majority
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

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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

p. 5

Costs

The appeal is 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.

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.
p. 5Final orders - dismissal of appeal with costs
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
p. 3Scope of second appeals
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.
p. 4Purpose of rules of procedure

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.