Ndungu Njau v National Bank of Kenya Limited
The bottom line
#Kenya's Court of Appeal confirmed that review is for obvious errors only — complaints about how a trial was conducted belong in an appeal, not a review application.
What this practically means
#Executive summary
#Key legal issues
#Scope of the grounds for review under section 80 of the Civil Procedure Act and Order XLIV rule 1 of the Civil Procedure Rules
The grounds alleged by the appellant (non-compliance with interlocutory orders, absence of summons to enter appearance, failure to file a defence to counterclaim) are not grounds for review; they would properly be grounds of appeal.
The court examined section 80 and Order XLIV rule 1, listing the three statutory grounds: new and important matter, mistake or error apparent on the face of the record, and any other sufficient reason. It found no new matter adduced with strict proof, no self-evident error identified, and concluded the alleged irregularities in the conduct of the trial belonged on appeal, not review. The review discretion was properly exercised by the Commissioner of Assize.
Whether disobedience of an interlocutory order to deliver a bill of costs constitutes contempt amounting to sufficient reason for review
Failure to obey an order to draw up a bill of costs does not, by itself, amount to contempt warranting review; contempt has specific procedural remedies, and an interlocutory order cannot fetter the trial court's findings.
The court noted counsel was aware of specific procedures for contempt and for handling taxation of bills of costs. It endorsed the Commissioner's reasoning that Githinji J's orders were interlocutory and could not fetter the court hearing the whole case; the plaintiff's remedy was appeal. The court also questioned why the appellant took no step to prompt compliance other than waiting for a review application.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong because of misdirection, reliance on wrong matters, or failure to consider relevant matters leading to a wrong conclusion
- An error or omission on the face of the record, to ground review, must be self-evident on the part of the court and should not require elaborate argument to establish
- A new and important matter or evidence relied on for review requires strict proof that it was not within the applicant's knowledge after exercise of due diligence at the time the decree was passed
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 1399 of 1995
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court dismissing an application for review (section 80 of the Civil Procedure Act; Order XLIV of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wafula v Kassim & another (Environment and Land Case 62 of 2019) [2026] KEELC 5118 (KLR)[2026] KEELC 5118 (KLR)22 Jul 2026
- Wafula v Kassim & another (Environment and Land Case 62 of 2019) [2026] KEELC 5118 (KLR)[2026] KEELC 5118 (KLR)22 Jul 2026applied
- Chirchir (Also known as John Chirchir) v Bor (Enviromental and Land Originating Summons 13B of 2021) [2025] KEELC 560 (KLR)[2025] KEELC 560 (KLR)13 Feb 2025
- Kenya Plantation and Agricultural Workers Union v Maramba Tea Factory (Cause 1067 of 2010) [2014] KEIC 148 (KLR)[2014] KEIC 148 (KLR)21 Jan 2014distinguished
Cite this brief
#Cite this brief
Caselaw, "Ndungu Njau v National Bank of Kenya Limited", Case Analysis (2008). Civil Appeal No. 257 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/188/eng@2008-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.