James Mwangi & 21 Others v Attorney General
The bottom line
#Kenya's Court of Appeal confirmed that if a judgment is wrong on a point of law, you must appeal it — asking for review instead leads nowhere.
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 appellants' application for review/setting aside of the judgment of Mumbi, J. dated July 11, 2012 was properly dismissed by Ongaya, J.
- 2.Whether the appellants met the threshold requirements for review under Order 45 of the Civil Procedure Rules, including whether the application was made without delay
- 3.Whether the Court should interfere with the finding that the appellants were aware of the petition proceedings through their advocates
Key legal issues
#Scope of the appeal before the Court
The appeal was confined to the ruling of Ongaya, J. dismissing the review application; issues of non-service, fair hearing, locus standi and Section 73(3) of the Labour Relations Act, which belonged to the judgment of Mumbi, J., were outside the appeal.
The Court noted it was not in dispute that the Notice of Appeal dated June 18, 2014 targeted only the ruling of June 13, 2014. Submissions on the merits of the underlying petition were therefore misplaced and could not be entertained on this appeal.
Whether the review application satisfied Order 45 of the Civil Procedure Rules
The appellants failed to meet the threshold requirements for review; the application was filed after unexplained and inexcusable delay and disclosed no ground for review.
Order 45 requires discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reasons, and the application must be made without delay. Ongaya, J. found the applicants were aware of the petition through their advocates but delayed unexplainably; the Court found no basis to interfere with that finding.
Whether a jurisdictional error is reviewable
A judgment founded on a pure point of law concerning jurisdiction can only be challenged on appeal, not by review.
The judgment of Mumbi, J. held the Industrial Court had exceeded its jurisdiction under Section 73(3) of the Labour Relations Act. Because the impugned judgment rested on a pure point of law on jurisdiction, review was the wrong remedy; the appellants, having chosen review over appeal, reached a dead end.
Legal principles established
#- A judgment based on a pure point of law touching on jurisdiction is amenable to appeal, not review.
- An erroneous conclusion of law or evidence is a ground for appeal, not review.
- An appeal lies only against the decision identified in the Notice of Appeal; matters decided in a different, earlier decision cannot be canvassed.
Court orders
#- 1.The appellants' appeal is dismissed
- 2.Costs of the appeal awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nakuru
- Industrial Court Petition No. 4 of 2013 (formerly Nairobi HC Petition No. 105 of 2010)
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Employment and Labour Relations Court (Notice of Appeal dated June 18, 2014)
Relief refused
#Appeal against the ruling of Ongaya, J. dismissing the application for review/setting aside of the judgment of Mumbi, J.
The appellants did not meet the threshold requirements for review; the impugned judgment was based on a pure point of law on jurisdiction amenable only to appeal, not review
Costs
The appellants' appeal is dismissed with costs to the 1st respondent.
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.
The impugned judgment was therefore based on a pure point of law touching squarely on jurisdiction and the same could only be amenable to an appeal as opposed to review.
From our re-evaluation of the background of this case, and the material before us, the appellants have not met the threshold requirements that would warrant issuance of orders of review.
Our parting shot is that an erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal. Once the appellants took the option of review rather than appeal they were proceeding in the wrong direction. They have now come to a dead end.
Accordingly, the appellants’ appeal is hereby dismissed with costs to the 1st respondent.
Issues in the judgment
#Inconsistent dating of the review application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mwangi & 21 Others v Attorney General", Case Analysis (2022). Civil Appeal 374 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/597/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.