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Court of AppealDismissedCivil Appeal (Nairobi)

Associated Insurance Brokers v Kenindia Assurance Co Ltd (Civil Appeal 94 of 2013) [2018] KECA 809 (KLR)

Court of Appeal of Kenya
9 February 2018
EGE. M. GithinjiHOHannah Okwengu
2,787 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 if a court ruling is merely wrong, you must appeal it — you cannot use the review process to have it reversed.

What this practically means

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Executive summary

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This Court of Appeal judgment, delivered at Nairobi on 9th February 2018 by Okwengu, JA with a concurring judgment by Githinji, JA (rule 32(3), GBM Kariuki, JA having ceased to hold office), dismissed the appellant broker's appeal against a High Court ruling. Kenindia Assurance Company Limited had obtained summary judgment against Associated Insurance Brokers in the Chief Magistrate's Court for Kshs. 798,376 for unremitted premiums under an agency agreement. Pending the broker's appeal to the High Court, the decretal sum was paid directly to the insurer pursuant to correspondence. Sitati, J held on 1st December 2011 that the appeal had been compromised, finding a binding contract from an offer and acceptance. The broker's application for review, arguing an error apparent on the face of the record, was dismissed by Onyancha, J on 7th March 2013 on the ground that he had no jurisdiction to reverse Sitati, J's ruling. The Court of Appeal applied National Bank of Kenya Ltd v Ndungu Njau and Nyamogo & Nyamogo Advocates v Kogo, holding that a considered decision based on findings of fact and interpretation of law is not an error apparent on the face of the record even if arguably wrong; it is challengeable only on appeal. Onyancha, J, though competent under Order 45 rule 2(2) to hear the review after Sitati, J's transfer, could not rehear the original motion. 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 payment of the decretal sum by the appellant compromised the appeal in the High Court
  2. 2.Whether the ruling of Sitati, J that the appeal had been compromised contained an error apparent on the face of the record capable of review
  3. 3.Whether Onyancha, J, having jurisdiction under Order 45 rule 2(2) of the Civil Procedure Rules to hear the review after Sitati, J's transfer, could rehear and reverse her substantive determination

Key legal issues

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01

Scope of review for error apparent on the face of the record

Holding

A decision based on findings of fact and interpretation of the law is not reviewable, even if arguably wrong; only a self-evident error requiring no elaborate argument qualifies.

Reasoning

Order 45 rule 1(1) of the Civil Procedure Rules permits review on account of mistake or error apparent on the face of the record. Citing National Bank of Kenya Ltd v Ndungu Njau and Nyamogo & Nyamogo Advocates v Kogo, the court held that where a court considered the facts and law and reached a possible conclusion, the decision is merely erroneous at most and can only be challenged on appeal. Sitati, J's determination that the appeal had been compromised was such a judicial determination.

p. 4
02

Jurisdiction of a different judge to hear review after the original judge's transfer

Holding

Onyancha, J had jurisdiction under Order 45 rule 2(2) to hear the review application, but that jurisdiction did not extend to rehearing and reversing Sitati, J's substantive determination.

Reasoning

The fact that Sitati, J was no longer attached to the High Court in Nairobi allowed any other judge to hear the review application, but the mandate of that judge was confined to determining whether there was an error apparent on the face of the record on which no other opinion was possible. It was not a licence to sit on appeal over the original ruling.

p. 5

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a merely erroneous or arguable decision is a ground for appeal, not for review.
  • A judicial determination reached after ascertainment of facts from evidence and their interpretation is not reviewable but may only be challenged on appeal.
  • A judge seized of a review application after the original judge's transfer may review the proceedings only to determine whether there is a self-evident error apparent on the face of the record; he cannot rehear and reverse the original determination merely because he would have taken a different view.

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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

HO
majority

Wrote the judgment

Wrote the lead judgment tracing the history of the dispute from summary judgment in the Chief Magistrate's Court, through the ruling of Sitati, J that the appeal had been compromised, to the dismissal of the review application by Onyancha, J. She held that a considered decision based on findings of fact and law, even if arguably erroneous, is not an error apparent on the face of the record and is reviewable only on appeal.

For the above reasons, I find that Onyancha J was right in rejecting the appellant’s motion for review. Accordingly, I find no substance in this appeal and would therefore dismiss it with costs.p. 5
EG
concurring

Wrote the judgment

Concurred with the judgment of Okwengu, JA in draft, adding that the decision of Sitati, J was a judicial determination based on ascertainment and interpretation of facts and therefore not reviewable but challengeable only on appeal.

Thus, the decision of the learned Judge was a judicial determination of the dispute which is not reviewable. It could only be questioned in an appeal.p. 2
On appeal from
High Court of Kenya at Nairobi
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court under the Court of Appeal Rules (judgment delivered under rule 32(3) of the Court of Appeal Rules)

Relief refused

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Setting aside the ruling of Onyancha, J dismissing the application for review of the ruling of Sitati, J

The ruling of Sitati, J was a judicial determination based on findings of fact and law; any error in it was not self-evident and could only be challenged on appeal, not by review.

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.

Accordingly, the judgment of the court is that the appeal is dismissed with costs.
p. 2Final orders - dismissal of appeal
For the above reasons, I find that Onyancha J was right in rejecting the appellant’s motion for review. Accordingly, I find no substance in this appeal and would therefore dismiss it with costs.
p. 5Final orders - affirmance of the High Court ruling
There is a real distinction between a mere erroneous decision and an error apparent on the face of the record.
p. 4Distinction between erroneous decision and error apparent on the face of the record
Thus, the decision of the learned Judge was a judicial determination of the dispute which is not reviewable. It could only be questioned in an appeal.
p. 2Reviewability of judicial determinations
Such an error is distinguishable from an erroneous considered decision anchored on a wrong conclusion on law or evidence that may be subject of an appeal.
p. 5Scope of review jurisdiction

Issues in the judgment

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minor

The judgment does not state the appeal number in the Court of Appeal, and the coram is incomplete because the third judge, GBM Kariuki, JA, had ceased to hold office before delivery of the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Associated Insurance Brokers v Kenindia Assurance Co Ltd (Civil Appeal 94 of 2013) [2018] KECA 809 (KLR)", Case Analysis (2018). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/809/eng@2018-02-09

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