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Court of AppealDismissedCivil Appeal No. 40 of 2016

Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2019] KECA 594 (KLR)

Court of Appeal of Kenya
28 June 2019
2,197 words in judgment
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The bottom line

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The Court of Appeal confirmed that Kenyan courts can only review judgments on strict legal grounds—feeling wronged isn't enough.

What this practically means

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Executive summary

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This Court of Appeal judgment at Nyeri (Githinji, Sichale and ole Kantai JJ.A) dismissed an appeal against a ruling of Mativo J dated 19th February 2016, which had declined to review the judgment of Wakiaga J of 28th November 2014 in Nyeri H.C.C.C No. 142 of 2012. The underlying dispute arose from the attachment of the appellant's matatu by the respondent auctioneer on 26th May 2005 in execution of a judgment obtained by Habib Bank Limited, despite a stay order issued by the High Court in H.C.C.C No. 1345 of 2005 (O.S) restraining execution against parties insured by United Insurance Co. Ltd, then under statutory management. The vehicle was released only on 10th April 2012. Wakiaga J had dismissed the appellant's suit for loss of use and damages, holding that the respondent acted as agent of a disclosed principal and lawfully retained the vehicle pending payment of auctioneer's fees. The appellant, appearing in person, then sought review, contending that the respondent had disobeyed court orders. The Court of Appeal held that review is confined to the parameters of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The orders the appellant relied upon existed at the time of the decree and were within his knowledge; there was no new evidence, no error apparent on the face of the record, no sufficient reason, and the application was brought with unreasonable delay. While expressing sympathy for the appellant, who acted without counsel, the Court found the appeal without merit, affirmed the ruling of Mativo J, and dismissed the appeal with costs to the respondent.

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 could be faulted for refusing to allow the application for review of the judgment of Wakiaga, J
  2. 2.Whether the appellant demonstrated grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010

Key legal issues

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01

Whether the grounds for review under Order 45 Rule 1 of the Civil Procedure Rules, 2010 were satisfied

Holding

The Court of Appeal affirmed Mativo J's finding that the grounds for review were not satisfied. The orders the appellant relied on existed at the time of the decree and were within his knowledge; there was no new matter, no error apparent on the face of the record, no sufficient reason, and the application was delayed.

Reasoning

The Court reproduced Section 80 of the Civil Procedure Act and Order 45 Rule 1, which confine review to discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and require the application to be made without unreasonable delay. Mativo J had found that the orders relied on were known to the appellant, who was an interested party in one of the cases, and that no error apparent or sufficient reason was demonstrated. The Court agreed with that analysis.

p. 3
02

Whether the appellant's genuine grievance about disobedience of court orders justified review

Holding

A genuine grievance falling outside the statutory parameters of review does not entitle an applicant to review; sympathy cannot displace the law.

Reasoning

The Court acknowledged that the appellant, who acted in person, had understandable grievances arising from orders that insured vehicles should not be attached and directing release of his vehicle. However, it held that review is confined to the parameters set out in Order 45 Rule 1, and the appellant's grievance did not fall within those parameters. The proper avenue for an aggrieved party is an appeal, not review.

p. 3

Legal principles established

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  • The power of review must be exercised strictly within the framework of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010; a genuine grievance falling outside those parameters cannot sustain a review.
  • Orders in existence at the time a decree was passed, and known or discoverable by the applicant, do not constitute new and important matter or evidence for purposes of review.
  • Where a party is aggrieved by a judgment, the proper remedy is an appeal rather than an application for review.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nyeri
Nyeri H.C.C.C No. 142 of 2012
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court under the Civil Procedure Act (appeal from a ruling in a civil suit); no specific constitutional provision cited.

Relief refused

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Review of the judgment of Wakiaga, J dated 28th November 2014 and an order that the case be heard afresh on merit

The appellant failed to satisfy the statutory grounds for review: no discovery of new and important matter, no error apparent on the face of the record, no sufficient reason, and the application was made with unreasonable delay

p. 3

Costs

Appeal dismissed with costs to the respondent.

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.

the High Court has a power of review, but such said power must be exercised within the framework of Section 80 Civil Procedure Act and Order 45 Rule 1
p. 2Scope of the power of review
The appellant may have had a genuine grievance but this did not fall within the ambit of a review application.
p. 3Genuine grievance insufficient for review outside statutory grounds
There is no allegation that there is an error apparent on the face of the record. It has not been shown that there is a sufficient reason to warrant the review
p. 3Failure to establish grounds for review
We too are of a similar view and it is in view of this that we find, albeit with sympathy, that this appeal has no merit. It is hereby dismissed with costs to the respondent.
p. 3Final orders - dismissal of appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2019] KECA 594 (KLR)", Case Analysis (2019). Civil Appeal No. 40 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/594/eng@2019-06-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.