Kevin Mbogo & another v University of Eastern Africa Baraton [2015] KECA 93 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if a judge made a legal mistake, you must appeal the decision—you cannot ask the same court to review its own 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 of the High Court erred in declining to review the earlier order of the court given on 16th June 2010 dismissing the appellants' motion for judicial review
- 2.Whether review was available where the complaint was that the earlier decision contained an erroneous conclusion of law, or whether the remedy lay only in an appeal
Key legal issues
#Availability of review where a court has made a considered decision later said to be wrong in law
The High Court correctly refused to review its earlier decision; review is not a vehicle for a second bite at a considered judicial determination said to be legally unsound.
The competence of the verifying affidavit was raised before Mwilu, J., who dealt with it and reached a considered, deliberate decision. If that decision were legally unsound, correction lay only on appeal to the Court of Appeal. Azangalala, J. correctly declined to invoke the court's inherent power to vary a fellow judge's considered ruling, as that would amount to sitting on appeal over the earlier decision, a jurisdiction he did not possess.
Scope of grounds for review under National Bank of Kenya v Ndungu Njau
Misconstruing a statute or reaching an erroneous conclusion of law cannot be a ground for review; the error must be apparent on the face of the record.
The Court adopted the test in National Bank of Kenya Limited v Ndungu Njau: review corrects only self-evident errors or omissions apparent on the face of the record. It is insufficient that another judge might have taken a different view or that the court erred in its exposition of the law. The appellants' complaint of error of law and fact was thus a matter for appeal, not review, and the appeal against the refusal of review necessarily failed.
Legal principles established
#- A court cannot use review to sit on appeal over its own decision; an erroneous conclusion of law or incorrect exposition of the law is a ground for appeal, not for review.
- Review may only be granted to correct an error or omission that is self-evident and requires no elaborate argument.
Court orders
#- 1.The appeal fails and is 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 Eldoret
- Misc. Civil Application No. 7 of 2010
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the High Court (Constitution of Kenya, Article 164; appeal against dismissal of a review application in a judicial review matter)
Relief refused
#Setting aside of the High Court ruling declining to review the order of 16th June 2010 dismissing the judicial review motion
The High Court correctly declined to sit on appeal over its own earlier decision; an alleged erroneous conclusion of law is a ground of appeal, not of review
Costs
The appeal was 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.
If that decision was incompetent or legally unsound it would only be corrected by the Court of Appeal and not in the manner adopted.
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court.
Misconstruing a statute or other provision of law cannot be a ground for review.
For those reasons, we do not therefore have a basis for interfering with the decision reached by the High Court. The appeal fails and is dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kevin Mbogo & another v University of Eastern Africa Baraton [2015] KECA 93 (KLR)", Case Analysis (2015). Civil Appeal No. 241 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/93/eng@2015-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.