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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No. 290 of 2009

Christopher Kagema Gichuhi v Livingstone Gitome Kohiguka [2016] KECA 573 (KLR)

Court of Appeal
19 May 2016
2,012 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that review is not appeal: you cannot revive a lost case using facts you already knew about.

What this practically means

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Executive summary

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The Court of Appeal dismissed an appeal against the High Court ruling of 13th December 2007 (Khamoni, J) refusing to review the Judge's earlier ruling of 19th March 2007, which had upheld a preliminary objection and struck out the appellant's plaint in a trespass suit over L.R No. Ngong/Ngong 5862. The single question before the Court was whether the Judge was justified in dismissing the review application. Applying its earlier decision in Mulembe Farm Limited v John B. Masiika, the Court reiterated that review is not the same as appeal: the applicant must show new and important matter or evidence not obtainable with due diligence at the time of the order, or an error apparent on the face of the record. The appellant's claimed new facts - that two separate parcels belonging to the parties were divided by a road and did not share a boundary - were held to have been within his knowledge when the earlier ruling was made, and he had not complained of ambush or sought an adjournment. The Court further declined to entertain the appellant's ground attacking the High Court's jurisdiction over trespass claims under section 3 of the Land Disputes Tribunal Act, because that finding was contained in the ruling of 19th March 2007, against which no appeal had been filed. The appeal was accordingly dismissed with costs to the respondent. The judgment is a single unanimous judgment of the Court.

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 was justified in dismissing the application seeking review of his earlier ruling of 19th March 2007

Key legal issues

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01

Whether the requirements for review under the relevant provisions were met

Holding

They were not: the appellant was a party to the proceedings and relied on facts and evidence within his knowledge at the time of the ruling, so review could not succeed.

Reasoning

The Court adopted the test in Mulembe Farm Limited v John B. Masika: an applicant must show new and important matter or evidence not obtainable with due diligence, or an error apparent on the face of the record. Review is discretionary and circumscribed, invoked to prevent injustice or hardship. Here the alleged non-disclosure of the existence of two separate parcels was evidence within the appellant's knowledge when the 19th March 2007 ruling was made; he did not even seek an adjournment or complain of ambush. The Judge rightly dismissed the review application.

p. 4
02

Whether this Court could entertain the challenge to the finding that the High Court lacked jurisdiction over trespass claims

Holding

It could not: that finding was in the ruling of 19th March 2007, which was never appealed against; only the ruling of 13th December 2007 dismissing the review was under appeal.

Reasoning

The appellant's ground attacking the High Court's jurisdiction over trespass under section 3 of the Land Disputes Tribunal Act went to the earlier ruling of 19th March 2007. The respondent correctly submitted that only the refusal of review was properly before the Court. Since no appeal was lodged against the 19th March 2007 ruling, the Court had no jurisdiction to revisit the striking out of the plaint or the jurisdictional finding, and confined itself to the review question.

p. 4

Legal principles established

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  • The jurisdiction to review is narrower than appellate jurisdiction; an applicant for review must show new and important matter or evidence not within his knowledge despite due diligence, or an error apparent on the face of the record, and cannot rely on facts and evidence that were previously within his knowledge.
  • An appeal against a ruling dismissing a review application does not open up the substantive ruling sought to be reviewed; where no appeal is filed against that substantive ruling, the court cannot disturb it.

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 Nairobi
H.C.C.C. No. 412 of 2002
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court (appeal as of right under the Court's appellate jurisdiction; no specific provision cited in the judgment)

Relief refused

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Setting aside the ruling of 19th March 2007, reinstatement of the plaint dated 7th March 2002, and a finding that the High Court had jurisdiction over trespass claims

The appeal was against the ruling of 13th December 2007 dismissing the review application, not against the ruling of 19th March 2007 on jurisdiction; and the appellant failed to meet the requirements for review as the alleged new facts were within his knowledge.

p. 4

Costs

The appeal was 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.

Based on the above reasons, we find that this appeal has no merit and it is dismissed with costs.
p. 4Final orders - dismissal of the appeal
The power of review is not the same as the power exercisable on appeal. That is why the jurisdiction of the court in review is circumscribed.
p. 3Scope of review jurisdiction
For an application for review to succeed, the evidence must not only be new but the applicant must prove that he did not have the evidence or knowledge in his possession at the time of hearing and could not have obtained it at the time.
p. 3Requirements for review
In view of the foregoing, we are in agreement with the ruling of the learned Judge and find no reason to interfere with the same.
p. 4Affirmance of the decision below

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, "Christopher Kagema Gichuhi v Livingstone Gitome Kohiguka [2016] KECA 573 (KLR)", Case Analysis (2016). Civil Appeal No. 290 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/573/eng@2016-05-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.