Nderitu & 6 others v Assests Recovery Agency (Civil Appeal E321 of 2020) [2024] KECA 1612 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that evidence you chose not to present at trial cannot later be used to overturn a judgment through review.
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 had made a case for the trial court to review its earlier judgment
Key legal issues
#Whether failure by a previous advocate to present available evidence constitutes 'sufficient reason' for review under Order 45 rule 1 of the Civil Procedure Rules
No. A deliberate strategic decision by counsel not to tender evidence, based on a mistaken view of the law, is not an excusable mistake or sufficient reason for review.
The Court contrasted excusable genuine mistakes (Belinda Murai, Phillip Chemwolo) with strategic choices ignoring clear statutory provisions. Since POCAMLA has been in force since 2010 and section 92(4) expressly removes conviction as a prerequisite, the advocate's decision to withhold evidence was not a procedural lapse. The parties must bear the consequences, and the review jurisdiction cannot circumvent established legal procedures.
Whether the documents discovered in April 2020 qualified as new and important matter discovered after due diligence
No. The evidence was always available to the appellants, who chose not to avail it, and the explanation of documents being carted away in raids was contrived and raised for the first time in the review application.
The Court found the blame game between the appellants and their former advocates implausible, noting the anomalous correspondence in which the former advocates' response predated the letter of inquiry. The raid allegation was never raised during the forfeiture hearing, undermining its credibility. Evidence withheld by election cannot satisfy the due-diligence threshold for review.
Whether the appellate court could interfere with the trial court's discretionary dismissal of the review application
No. None of the grounds for disturbing an exercise of discretion - misdirection, acting on wrong matters, or ignoring relevant matters - were demonstrated.
Relying on Mbogo v Shah, the Court reaffirmed that a discretionary decision may only be impugned if it was clearly wrong because the judge misdirected himself, acted on matters he should not have, or failed to consider matters he should have, arriving at a wrong conclusion. It is not enough that the appellate court would have decided differently.
Legal principles established
#- An applicant for review must show the new evidence could not be produced at the original hearing despite due diligence; evidence withheld by choice does not qualify.
- A misunderstanding, misinterpretation or misapplication of the law by counsel cannot be a basis for review.
- Parties bear the consequences of their advocate's strategic choices; a deliberate decision not to tender evidence is not an excusable mistake.
- An appellate court will not interfere with a trial court's exercise of discretion unless the discretion was exercised wrongly on settled principles.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- ACEC Civil Case No. 2 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Court of Appeal's appellate powers (Civil Procedure Act); the judgment does not expressly invoke a specific article or section for its jurisdiction.
Relief refused
#Review and setting aside of the High Court judgment of 22nd April 2020
The evidence was available at trial; blaming prior advocates was not candid and a mistaken defence strategy cannot found review.
Stay of execution of the judgment and decree
Not addressed by the parties in submissions; effectively fell away.
Costs
Appeal dismissed with costs to the 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.
Given all the foregoing, we come to the irresistible conclusion that the appeal lacks merit and is hereby dismissed with costs to the respondent.
In any event, a misunderstanding, misinterpretation or misapplication of the law by counsel cannot be a basis for review.
The applicants must bear the consequences of their advocate’s strategic choices.
For the applicant, however, to benefit from this provision of the law, she or he must demonstrate that they exercised due diligence in trying to obtain the evidence during the original proceedings
The court must uphold the integrity of the judicial process by ensuring that statutory provisions are adhered to and that strategic decisions by counsel are not used to circumvent established legal procedures.
Issues in the judgment
#The judgment describes the decision appealed against inconsistently - at times as a 'ruling' and at times as a 'judgment' of 22nd April 2020, while the ruling dismissing the review application was delivered on 21st August 2020; the record is not internally precise on this.
Order 45 rule 1(b) is quoted in the judgment but the block quotation appears garbled/incomplete in the text as provided.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Tuta & another v Ngoloma (Land Case (Originating Summons) E016 of 2024) [2026] KEELC 1216 (KLR)[2026] KEELC 1216 (KLR)3 Mar 2026
- Daniel & 7 others v Daniel & 2 others (Environment and Land Case E050 of 2021) [2025] KEELC 7129 (KLR)[2025] KEELC 7129 (KLR)21 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Nderitu & 6 others v Assests Recovery Agency (Civil Appeal E321 of 2020) [2024] KECA 1612 (KLR)", Case Analysis (2024). Civil Appeal (from High Court ACEC Civil Case No. 2 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1612/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.