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Court of AppealDismissedCivil Appeal No. 385 of 2017

Adrian Kamotho Njenga v Cabinet Secretary, Ministry of Information Communication and Technology & 8 others [2019] KECA 872 (KLR)

Court of Appeal
8 March 2019
2,876 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a judgment of the full Court of Appeal at Nairobi (Ouko, P., Koome and Kantai, JJ.A) dismissing Adrian Kamotho Njenga's appeal against a ruling of Mativo, J. delivered on 27th September 2017 in Petition No. 203 of 2016. The underlying petition had been dismissed by Lenaola, J. on 24th February 2017; that petition had challenged the gender composition and appointment of the Board of the Communications Authority of Kenya as violating Articles 10 and 27 of the Constitution and Section 6B(10)(c) of the Kenya Information and Communications Act. The appellant then sought review of that judgment, principally on the ground that all seven Board members were gazetted on the same effective date contrary to Section 1(2) of the First Schedule to the Act. Mativo, J. dismissed the review application, holding that the grounds challenged the judgment itself and lay on appeal, not review, and that no appeal had been filed. On appeal, the Court identified only one issue: whether Mativo, J. was right that the review application failed. Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the principles in National Bank of Kenya Ltd v Ndungu Njau, the Court held that erroneous findings, statutory construction and the absence of a determination on a statutory provision are matters for appeal, not review, and are not errors apparent on the face of the record. The Court also rejected the appellant's allegations of plagiarism by the Judge and of tampering with the ruling, holding that judges may quote from relevant past decisions and may add or remove words while delivering a ruling before penning it off. The appeal was dismissed with each party bearing their own costs, the Court following the earlier public-interest costs direction.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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

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01

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

Holding

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.

Reasoning

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.

p. 4
02

Whether the High Court Judge's reference to and quotation from an earlier decision constituted plagiarism and misconduct

Holding

No; judges may refer to and quote from prior decisions containing relevant material, and no mechanism was offered for a finding of plagiarism.

Reasoning

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.

p. 3
03

Whether handwritten additions to a ruling after delivery invalidated the decision

Holding

No; a judge may add or remove words while delivering a ruling before it is penned off, so long as the substance is unaltered.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Each party to meet their own costs of this appeal

The bench

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

William Ouko
W. OukoJA
Currently serving
majority

Wrote the judgment

Martha Karambu Koome
M. KoomeJA
Currently serving
majority

Wrote the judgment

majority

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

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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

p. 4

Costs

Each party to meet their own costs of this appeal

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.

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.
p. 4Final orders - appeal 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.
p. 4Costs order
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.
p. 4Review versus appeal
Misconstruing a statute or other provision of law cannot be a ground for review.
p. 4Limits of review

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.