Samson Ngugi Ichungwa T/A Grenair v National Industrial Credit Bank & 2 others
The bottom line
#Kenya's Court of Appeal confirmed that review is not a second chance to re-argue a lost case—wrong decisions should be appealed, not reviewed.
What this practically means
#Executive summary
#Key legal issues
#Whether the refusal to review the order declining to set aside the interlocutory judgment was erroneous
The appeal on the review application fails; the appellant did not meet the Order 45 thresholds and wrong exercise of discretion is a ground of appeal, not review
The appellant failed to file a defence to the counter-claim within time and without leave, so the counter-claim succeeded undefended. His complaints about the setting-aside ruling were re-arguments already considered by the judge. The court applied the Supreme Court's Wambora principles on review of discretionary decisions and Origo v Mungala, holding that alleged misdirection in discretion belongs to appeal, not review.
Whether the appellant's suit is spent, overtaken by events and res judicata
The suit is spent and res judicata; unchallenged prior rulings had upheld the statutory power of sale and confirmed the validity of the auction sale and transfer
Rulings by Kimaru, J and Koome, J in HCCC No. 287 of 2009 and HCCC No. 592 of 2008 upheld the chargee's right to sell and the validity of the 9th February 2010 auction. Those rulings were never appealed or set aside, so they remain binding. The prayers in the present suit sought to relitigate those conclusively determined issues, attracting res judicata, whose rationale is finality in litigation.
Whether the trial court exercised its discretion judiciously
Yes; the appellate court will not interfere with a discretion exercised on judicious grounds
The Judge found the High Court had not deviated from applicable principles nor exercised discretion wrongly or unjustly. Following Mbogo v Shah, an appellate court interferes only where discretion was exercised capriciously or on wrong principles. No such misdirection was demonstrated here, so the ruling stands.
Legal principles established
#- An erroneous conclusion of law or evidence is a ground for appeal, not for review; once a party elects review instead of appeal, they reach a dead end
- Review of the exercise of discretion is not an appeal or a chance to re-argue an application; the applicant must show the court erred in exercising its discretion
- Res judicata bars not only issues directly in issue between the same parties but also issues that ought to have been raised
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 86 of 2010 (ruling dated 31st July 2015)
- Jurisdiction invoked
- First appeal from the High Court under the Court of Appeal's appellate jurisdiction; interlocutory appeal heard together with a rule 5(2)(b) application under the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samson Ngugi Ichungwa T/A Grenair v National Industrial Credit Bank & 2 others", Case Analysis (2019). Civil Appeal No. 38 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/558/eng@2019-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.