Eliud Nyaega Gwaro v Kenya Revenue Authority
The bottom line
#Kenya's Court of Appeal dismissed a former KRA employee's appeal, confirming that you must choose between appealing a judgment or seeking its review — not both.
What this practically means
#Executive summary
#Key legal issues
#Abuse of court process through overlapping challenges to the same decision
The appellant's non-disclosure of the review application in a prior extension-of-time application, combined with his concession that one cannot appeal a judgment after seeking its review, rendered the appeal procedurally untenable and abusive
The appellant pursued an extension of time to appeal the 29th March 2021 judgment (Civil Application No. 412 of 2022, dismissed 14th December 2022) without disclosing that he had also sought review of the same judgment in the Employment Court. The Court found this constituted multiple, overlapping and inadequately disclosed attempts to challenge the same decision, undermining the integrity of the judicial process. This made the appeal fatally flawed regardless of its merits.
Whether the trial court erred in dismissing the review application
The learned Judge's exercise of discretion could not be disturbed: the appellant failed to establish discovery of new and important matter or an error apparent on the face of the record
The Court reiterated the narrow grounds for review under Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and Rule 33(1) of the ELRC (Procedure) Rules, 2016. The documents the appellant sought to introduce (marked EG1) were in his knowledge during the disciplinary process and could have been obtained earlier, including through discovery. Review is not a vehicle for re-litigating a case out of disappointment with the outcome, and dissatisfaction with findings is a ground of appeal, not review.
Timeliness of the notice of appeal
The appeal was not struck out for lateness because the respondent produced no evidence to disprove the appellant's claim that the notice of appeal was dated 14th June 2021
The respondent contended the notice of appeal was dated 14th June 2022, over a year after the 31st May 2021 ruling, and urged striking out under Rule 85. The appellant clarified the notice was dated 14th June 2021 and that a certificate of delay was obtained because proceedings were not ready. The Court found no conclusive evidence to the contrary and declined to strike out the appeal on that basis.
Legal principles established
#- An appellate court may only interfere with the exercise of discretion by a lower court where the decision was clearly wrong, because of misdirection, acting on wrong matters, or failure to consider relevant matters
- Documents known to a party and discoverable during the original proceedings are not 'new and important matter' for review under Order 45
- A party aggrieved by a judgment must elect between appeal and review; a ground that is merely a good ground of appeal is not a ground for review
Court orders
#- 1.Dismissal of the appeal in its entirety
- 2.Costs of the appeal to the respondent
- On appeal from
- Employment and Labour Relations Court, Nairobi
- ELRC Cause No. E298 of 2020
- Jurisdiction invoked
- First appeal from the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eliud Nyaega Gwaro v Kenya Revenue Authority", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1120/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.