Nairobi, Kenya – The Court of Appeal has dismissed an attempt by Kenya Postel Directories Limited to revive a long-running copyright dispute against Yellow Pages Publishing & Marketing Limited and Telkom Kenya Limited, ruling that the review procedure cannot be used as a substitute for an appeal.
The judgment, delivered in Nairobi on January 30, 2026, by a three-judge bench comprising Court of Appeal President Daniel K. Musinga and Justices Joel Ngugi and George V. Odunga, upheld a High Court decision that had declined to review earlier orders dismissing the suit for want of prosecution.
Background of the Dispute
The case dates back to 2002, when Kenya Postel Directories sued Yellow Pages over alleged copyright infringement, seeking injunctive relief, damages, and an account of profits. Telkom Kenya was later joined to the proceedings.
Over the years, the matter stalled repeatedly, with courts citing incomplete pre-trial processes and failure to comply with procedural directions. In March 2016, the High Court dismissed Kenya Postel’s main suit for want of prosecution, citing inordinate delay, non-compliance with court orders, and prejudice to the respondents. Kenya Postel did not appeal that decision.
Instead, the company filed fresh applications in 2016 and 2017, including an effort to dismiss the counterclaim and a separate application seeking a review of the dismissal of its own suit.
Review Application and Appeal
Kenya Postel argued that the High Court had issued contradictory decisions by dismissing the main suit while allowing the counterclaim to proceed, claiming this amounted to unequal treatment and judicial bias. The High Court rejected those arguments in November 2017, prompting the appeal now determined by the Court of Appeal.
In its ruling, the appellate court held that allegations of bias or claims of inconsistent reasoning do not amount to an “error apparent on the face of the record” the threshold required for review.
The judges emphasized that review jurisdiction is limited and cannot be used to re-evaluate the merits of a decision or correct what a party considers flawed reasoning.
Court’s Findings
The Court of Appeal found that Kenya Postel’s grievance related to discretionary decisions made by the High Court, which were appealable. It noted that the company had opted not to appeal either the 2016 dismissal of its suit or the 2017 ruling allowing the counterclaim to proceed.
“Having elected not to appeal, the appellant cannot later invoke the review jurisdiction as a surrogate appellate process,” the judges held.
The appellate court also rejected attempts to reframe the dispute as a constitutional grievance under Articles 10, 27, and 159 of the Constitution, stating that constitutional values do not override the procedural distinction between appeal and review, nor do they permit parties to bypass available appellate remedies.
The court concluded that there was no misdirection in law by the High Court, no irrelevant considerations were taken into account, and no plainly wrong exercise of discretion had been shown.
Outcome
The appeal was dismissed, with costs awarded to Yellow Pages Publishing & Marketing Limited. The ruling underscores the importance of adhering to procedural rules and highlights the limited scope of review jurisdiction in Kenya’s judicial system.
