Mpenzwe Ngoba Mtana & another v Zuhura Shaban [2018] KECA 299 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed it rarely disturbs a judge's discretion, and 'errors' must be obvious on the record before a review will be granted.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a basis for the Court of Appeal to interfere with the learned Judge's exercise of discretion in dismissing the application for review
- 2.Whether there was an error apparent on the face of the record as to the date the Appeals Tribunal delivered its decision
- 3.Whether the respondent's objection to the competency of the appeal, raised for the first time in submissions, was filed within the time prescribed by the proviso to Rule 84 of the Court of Appeal Rules
Key legal issues
#Interference with discretionary decisions on appeal
The learned Judge properly exercised his discretion in dismissing the review application; there was no misdirection, misapprehension of the law, or failure to consider relevant matters justifying appellate interference.
The Court reiterated the settled test from Mrao Ltd v First American Bank for disturbing discretionary decisions. Applying it, the Court found the Judge correctly addressed the conditions for review under Order 45 of the Civil Procedure Rules and concurred with his findings that the certified proceedings showed the Tribunal decision was dated 21st September 2009, that the claimed error was not self-evident, and that the alleged hearing notice could not be relied upon absent an affidavit from its maker.
Error apparent on the face of the record as a ground for review
The alleged error in the date of the Tribunal's decision was not self-evident; the proceedings formed part of the record of appeal and showed the decision dated 21st September 2009, and the certification point was where any error should have been corrected.
The Court adopted the National Bank of Kenya v Ndungu Njau principles that a reviewable error must be self-evident without elaborate argument. The Judge's findings that it was improbable the Committee reserved its decision for over a year, and that a hearing notice cannot be relied on without an affidavit of its maker, were concurred with. The purported error was therefore not apparent on the face of the record.
Timing of an objection to competency of an appeal under Rule 84
The respondent's objection that the appeal before the Court of Appeal was filed out of time failed because it was raised more than thirty days after service of the record of appeal, contrary to the proviso to Rule 84.
The record of appeal was filed on 19th October 2017 and the objection was raised in submissions filed on 25th May 2018, well outside the thirty-day window in the proviso to Rule 84. The Court therefore declined to entertain the competency objection on its merits.
Legal principles established
#- An appellate court will interfere with a judge's exercise of discretion only where the judge misdirected himself, misapprehended the law, or failed to take into account a relevant matter.
- Under the proviso to Rule 84 of the Court of Appeal Rules, an application to strike out a notice of appeal or an appeal must be brought within thirty days from the date of service of the notice of appeal or record of appeal.
- A review on the ground of error apparent on the face of the record lies only where the error is self-evident and requires no elaborate argument; an erroneous conclusion of law or misconstruction of a statute is not a ground for review.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Malindi
- Civil Appeal No. 48 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal against a decision of the Environment and Land Court (Court of Appeal Rules, appeal as of right against ELC ruling)
Relief refused
#Appellants' alternative submission that the Tribunals' decisions were void for lack of jurisdiction over title to land
The issue was neither the subject of the appeal nor of the review application at the ELC
Costs
Appeal 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.
Accordingly, there is no reason to justify our interference with the learned Judge's discretion. We find that the appeal lacks merit and is hereby dismissed with costs.
an appellate court will only interfere with such discretion where the Judge misdirected himself in some matter and as a result arrived at a wrong decision or he misapprehended the law or failed to take into account a relevant matter
The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.
Provided that an application to strike out a notice of appeal or an appeal shall not be brought after the expiry of thirty days from the date of service of the notice of appeal or record of appeal as the case may be.
This court cannot rely on a hearing notice that was purportedly issued to the Appellant in the absence of an affidavit of the person who said to have prepared and signed the said hearing notice.
Issues in the judgment
#The judgment's header describes the appeal as arising from a ruling in Civil Appeal No. 48 of 2018, whereas the body and background refer to the ELC appeal as Civil Appeal No. 48 of 2010.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mpenzwe Ngoba Mtana & another v Zuhura Shaban [2018] KECA 299 (KLR)", Case Analysis (2018). Civil Appeal No. 74 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/299/eng@2018-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.