Omulele & Tollo Advocates v Mount Holdings Limited [2018] KECA 311 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot use 'review' to relitigate issues already decided — you must appeal instead.
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 erred in reviewing his earlier decision of 29th May 2017 by setting it aside and ordering the application dated 16th August 2016 to be heard afresh
- 2.Whether there was an error apparent on the face of the record in the Ruling of 29th May 2017 that warranted a review, or whether the matter was a candidate for an appeal
- 3.Whether the failure to address the legal capacity of Omulele & Tollo Advocates was an error on the face of the record, a new matter, or other sufficient reason warranting review
Key legal issues
#Whether a court may review its own order on the ground of error apparent on the face of the record
No. Where the alleged error involves protracted argument or elucidation, the remedy is appeal, not review. A judge cannot sit on appeal over his own judgment. The respondents' grievances over the legal capacity issue were res judicata.
The Court compared the prayers in the successive applications and found they all sought to strike out or stay the same Bill of Costs on the same underlying issue: the firm's locus standi. That issue had been adjudicated by Omollo J. and the Court of Appeal. The alleged oversight about registration status was known to the respondents throughout and was not new matter. Allowing review would permit litigating in instalments and a second bite at the cherry.
The ingredients of res judicata
The bar of res judicata applies where the issue was directly and substantially in issue, between the same parties litigating under the same title, heard and finally determined by a competent court; all elements are conjunctive.
Relying on Section 7 of the Civil Procedure Act and prior Court of Appeal and Supreme Court authority, the Court applied the conjunctive elements test and found the locus standi of Omulele & Tollo Advocates was fully litigated between the same parties before competent courts, barring the subsequent attempt to relitigate it via review.
Distinction between review and appeal
Review and appeal cannot be used interchangeably at a litigant's election; review is confined to the statutory grounds and cannot substitute for appeal.
The Court adopted the Supreme Court's dictum in Samuel Kamau Macharia distinguishing review from appeal, and Bosire JA's dictum in Ramesh Shah condemning litigation by instalments, to hold that the Judge's substitution of his own earlier ruling amounted to sitting on his own appeal rather than correcting a self-evident error.
Legal principles established
#- A judge cannot sit on appeal over his own ruling; an error of law or erroneous conclusion is a matter for appeal, not review, and an error on the face of the record must be self-evident.
- All five elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively for the bar to be raised and upheld.
- A party may not relitigate an issue already determined by litigating in instalments under the guise of review.
Court orders
#- 1.Appeal allowed
- 2.The ruling and orders made on 17th January 2018 set aside
- 3.Substituted with an order dismissing the respondent's notice of motion dated 10th July 2017
- 4.Appellants awarded costs of the appeal and of the proceedings before the High Court
- 5.Judgment to apply mutatis mutandis to Civil Appeals Nos. 36, 37 & 38 of 2018
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- High Court Misc. Application No. 2 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and appellate jurisdiction over the High Court (Articles 163(3) and (4) of the Constitution discussed)
- Consolidated with
- Civil Appeal No. 36 of 2018, Civil Appeal No. 37 of 2018, Civil Appeal No. 38 of 2018
Relief refused
#Respondents' application for review and rehearing of the notice of motion dated 16th August 2016
The matter was res judicata and the application was an abuse of court process; the legal capacity issue had been litigated and could not be reopened by review
Costs
The appellants shall have the costs of this appeal as well as before the High court.
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, we allow the appeal, with the result that the ruling and the orders made on 17 th January, 2018 are hereby set aside and substituted with an order dismissing the respondent's notice of motion dated 10 th July, 2017.
An error on the face of the record is self-revealing; it does not involve protracted arguments to unearth it and does not require a great elucidation of the ruling by the same Judge otherwise the matter turns into an appeal of the same Judge's ruling.
the cardinal principle that a Judge must never sit on his or her own judgment and litigants must never be allowed to abuse the court process by litigating in instalments
Therefore, for the bar of res judicata to be effectively raised and upheld the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms
The appellants shall have the costs of this appeal as well as before the High court. This judgement shall apply mutatis mutandis to Civil Appeals Nos. 36, 37 & 38 of 2018.
Issues in the judgment
#Internal inconsistency in dates: the judgment refers to the respondents' earlier application variously as dated '12 th February, 2015' (which gave rise to Civil Appeal No. 75 of 2015) and 'the application of 12 th September, 2015' / 'the application of 12th September, 2016', which cannot all be correct.
Section cited incompletely: the judgment records reliance on 'Sections 80 and of the Civil Procedure Act', omitting the second section (presumably section 80 read with Order 45), leaving the provision reference defective.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omulele & Tollo Advocates v Mount Holdings Limited [2018] KECA 311 (KLR)", Case Analysis (2018). Civil Appeal No. 35 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/311/eng@2018-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.