Online Reporter
Trust Maanda
Legal Position
THE legal system has ways in which a person can obtain a remedy.
The system is such that if a person is not happy with an outcome or the way in which their case has been decided or handled, they can take steps to have that decision corrected.
The legal system allows for appeals and reviews of decisions of the lower courts by a higher court.
For example, when one is aggrieved with a court or tribunal that is subordinate to the High Court, they may either appeal to the High Court or seek review of the tribunal’s decision in the High Court.
From the Magistrate’s Court, one can appeal to the High Court for the decision to be set aside.
In criminal matters, one can appeal against conviction or sentence or both.
If the High Court agrees with you, it can reverse the decision of the Magistrate’s Court which convicted or sentenced you.
An appeal can be against the whole or part of the judgment. Relief can be set aside the whole sentence and substitute it with a fresh decision or remit to the lower court for final decision.
The High Court can remit for trial to start afresh or for its finalisation on the merits.
Just make sure you are acquainted with the rules that provide for the time within which you can file an appeal.
Make sure to file valid grounds of appeal which are in accordance with the form and content that are required.
This is because the rules have number of days from day of decision to file appeal.
If the decision is interlocutory, you need to seek leave or permission of the High Court to appeal against it. Interlocutory decisions are the ones where the judgment pronounced is not final on the matter before the court, but one which deals with an issue during the trial.
For example, you may not agree with the court when it overrules your objection, but that ruling is merely while the trial is ongoing.
The court may rule to accept certain evidence you think is inadmissible or objectionable in one way or the other.
The ruling to accept or refuse admission of that evidence is interlocutory and not appealable automatically.
If a decision is interlocutory, get leave to appeal.
However, the High Court does not encourage appeals or invitation for it to intervene in proceedings that are not terminated yet.
Another way to seek a correction of the decision of a lower tribunal is to seek judicial review.
Review is when you are not happy with the procedural irregularities that afflict the process in the adjudication of your matter.
A review asks the court to look at those irregularities and find if the proceedings in the lower tribunal were in accordance with the principles of natural justice or procedure required by the law. A review can set aside
And substitute of remit back for finalisation or trial to start afresh or quash the proceedings and give a decision on the issue.
The difference between an appeal and a review are sometimes blurred but these two offer a distinct avenue for redress.
An appeal seeks a reversal or amendment of a decision of a lower tribunal where it is argued that the decision is wrong on its substance on the law or fact or both.
It involves revisiting the facts on the record and making a fresh determination on the merits. It looks at the correctness of the decision on the facts or the law.
On the other hand, a review assesses the legality and fairness of the decision-making process.
Appeals are based on points of law and fact, while reviews focus on procedural irregularities, unreasonableness or irrationality. A review scrutinizes the decision-making process itself.
The outcome of an appeal is that it can result in a modified, reversed or upheld decision.
Reviews can lead to the quashing or setting aside of the decision if procedural fairness is compromised.
You must assess whether the decision is appealable or reviewable.
That is where you need legal representation in order for you to get it right. You must also know if the decision can be automatically appealed against at all or you need to seek leave of the court. There are courts against whose decision you cannot ordinarily appeal.
For instance, the Supreme Court is the highest court of appeal in matters that do not involve the interpretation protection or enforcement of the Constitution.
The Supreme Court decision is final and cannot be appealed against.
You can however apply to the constitutional court for leave to appeal or apply directly where the Supreme Court itself has infringed your rights in the process or outcome of your case. But that is in very rare cases.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
