Adrian Kamotho Njenga v Cabinet Secretary, Ministry of Information Communication and Technology & 8 others [2019] KECA 872 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if you lose a case because the judge got the law wrong, you must appeal — you cannot ask the same judge to review the decision.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Mativo, J. was right in holding that the application before him did not meet the principles that guide a court in an application for review
Key legal issues
#Whether the application for review met the threshold under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
The application did not disclose error apparent on the face of the record, new and important matter, or sufficient reason; the grounds raised belonged to an appeal, not review.
The Court restated the review grounds: discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason, applied for without unreasonable delay. The appellant's grounds - that the earlier judgment ignored matters of law, misconstrued statutes and failed to determine a statutory provision - attacked the correctness of the judgment itself. Such complaints lie on appeal, which the appellant had not filed.
Whether the High Court Judge's reference to and quotation from an earlier decision constituted plagiarism and misconduct
No; judges may refer to and quote from prior decisions containing relevant material, and no mechanism was offered for a finding of plagiarism.
The appellant alleged the ruling was an outright plagiarism of Stephen Gatua Kimani v Nancy Wanjira Waruingi and violated Articles 73, 74 and 75 of the Constitution and the Judicial Code of Conduct. The Court treated the complaint as irrelevant, holding that quoting useful material from past cases is legitimate and that the appellant provided no mechanism to establish plagiarism.
Whether handwritten additions to a ruling after delivery invalidated the decision
No; a judge may add or remove words while delivering a ruling before it is penned off, so long as the substance is unaltered.
The appellant complained that the words '& the interested parties' were added in handwriting to the tail-end of the ruling. The Court held the addition was minor, did not alter the substance of the decision, and that a judicial officer is entitled to add or remove words as judgment is delivered before it is penned off.
Legal principles established
#- Matters challenging a court's findings, interpretation and application of the law belong to the province of an appeal, not an application for review before a Judge of equal jurisdiction.
- Review may only be granted where the error or omission is self-evident on the face of the record; erroneous conclusions of law or misconstruing a statute are not grounds for review.
- A judicial officer delivering a judgment or ruling is entitled to add or remove words before the judgment is penned off, provided the substance of the decision is not altered.
- Judges are free to refer to and quote from previous decisions where they find useful material relevant to the matter before them; such reference is not plagiarism.
Court orders
#- 1.The appeal is dismissed
- 2.Each party to meet their own costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi (Constitutional and Human Rights Division)
- Petition No. 203 of 2016 (Ruling on application for review)
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court in a constitutional petition (Court of Appeal's appellate jurisdiction under Article 164 of the Constitution; provision not expressly invoked in the judgment)
Relief refused
#Allowing the appeal and, in effect, allowing the application for review dismissed by the High Court
The Court found the learned Judge reached a correct decision in rejecting the review application and saw no merit in the other grounds of appeal
Costs
Each party to meet their own costs of this appeal
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.
We have considered the whole record and we have come to the conclusion that the learned Judge reached a correct decision in rejecting the application for review. Having so found and because we do not see any merits in the other grounds of appeal, this appeal is dismissed.
The appellant says that he is motivated by public interest in moving the courts in litigations he files and we note that Lenaola, J. accepted that position. We will go in the same direction and order each party to meet their own costs of this appeal.
These were not issues that could be taken in an application for review by a Judge of equal jurisdiction. Those were matters that belonged to the province of an appeal.
Misconstruing a statute or other provision of law cannot be a ground for review.
Issues in the judgment
#Petition date inconsistency: the Gazette Notice is described as 'dated 27th February and published on 26th February, 2016', which is internally inconsistent as to dates
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adrian Kamotho Njenga v Cabinet Secretary, Ministry of Information Communication and Technology & 8 others [2019] KECA 872 (KLR)", Case Analysis (2019). Civil Appeal No. 385 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/872/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.