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Court of AppealDismissedCivil Appeal (Memorandum of Appeal dated 7th October 2019)

Njoka t/a Jofoco Contractors v Action Aid International - Kenya (Civil Appeal 276 of 2019) [2025] KECA 2081 (KLR)

Court of Appeal of Kenya
28 November 2025
2,974 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal dismissed Winnie Birrir's appeal, confirming you cannot get a court decision reviewed using documents that were already part of the case file.

What this practically means

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Executive summary

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The appellant contracted in February 2013 with the respondent to construct an irrigation pipeline for the Mashamba Irrigation Project in Embu County, and later sued for Kshs. 3,504,800 for alleged extra work. While the suit was pending, he applied in the High Court to transfer the case from the Chief Magistrate's Court at Embu and to have the respondent's counsel investigated for forgery, alleging bias by the trial magistrate. Muchemi, J. dismissed that application with costs on 18th July 2018, finding no proof of bias or forgery and the transfer application an attempt at forum shopping. The appellant then applied for review of parts of that ruling on grounds of discovery of new and important matter and error apparent on the face of the record. The High Court dismissed the review application, holding that the documents relied on had been on the court file since 2015 and that nothing new or significant had been presented on the bias issue. The appellant appealed on eighteen grounds, many introducing new matters such as fraud complaints and DCI investigations. The Court of Appeal confined itself to whether the review application met the Order 45(1) threshold. It agreed with the Judge that no new material had been demonstrated and no error apparent on the face of the record identified, endorsing the settled principles on review. It also held that the timeliness of the record of appeal was a preliminary issue to be raised before hearing under Rules 85 and 86. The appeal was dismissed with costs. Following the death of F. Ochieng, JA before delivery, the judgment was delivered under Rule 34(4) with the concurrence of the remaining bench members.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for review before the High Court met the necessary threshold under Order 45(1) of the Civil Procedure Rules

Key legal issues

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01

Whether the appellant established discovery of new and important matter or evidence for review

Holding

No new material was demonstrated; the documents relied on had been part of the court record long before the ruling sought to be reviewed.

Reasoning

The court examined the record and found the appellant pointed only to documents already filed by the respondent since 2015 and therefore in the court file at the time of the original application. Under Order 45(1), new matter must be matter which, after due diligence, was not within the applicant's knowledge or could not be produced when the order was made. Documents already on record cannot satisfy that test, and the court endorsed the authority that review will only be allowed on strong grounds where its effect would not reopen the case afresh.

p. 5
02

Whether there was an error apparent on the face of the record

Holding

No error apparent on the face of the record was demonstrated; the alleged stamp error may have been the registry's, not the respondent's.

Reasoning

The appellant alleged an error on the face of the record concerning document No. 16 and the court stamp, but did not demonstrate it. The Court reviewed the ruling itself and could not identify any such error. It adopted the Muyodi formulation that an applicant for review must show discovery of new matter after due diligence, or a mistake or error apparent on the face of the record, or some other sufficient reason, and that the application be made without unreasonable delay.

p. 5
03

The scope of the appeal where the appellant raised matters strange to the application for review

Holding

The Court confined itself to the grounds concerning the application for review, disregarding new issues introduced in the memorandum of appeal.

Reasoning

The eighteen grounds of appeal introduced matters, including allegations of fraud and DCI investigations, that were never part of the initial application or the application for review. The respondent's counsel complained of the difficulty of navigating such an appeal. The Court agreed and limited its determination to the review application, holding that the timeliness of the record of appeal was likewise not before it but should have been raised as a preliminary issue under Rules 85 and 86.

p. 4

Legal principles established

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  • An application for review under Order 45(1) requires discovery of new and important matter not obtainable with due diligence, an error apparent on the face of the record, or other sufficient reason, made without unreasonable delay; documents already on the court record do not qualify as new matter.
  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence and reach its own conclusions while making due allowance for not having seen or heard the witnesses.
  • The question of timeliness of a record of appeal under Rules 85 and 86 of the Court of Appeal Rules is a preliminary issue that must be raised before the appeal is set down for hearing, not at the hearing of the appeal.

Court orders

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  1. 1.The appeal is dismissed with costs

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
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules; the judgment notes delivery under Rule 34(4) of the Court of Appeal Rules

Relief refused

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Review of paragraphs 26, 28, 29, 30 and 31 of the High Court ruling of 18th July 2018

The appellant demonstrated neither discovery of new and important matter nor an error apparent on the face of the record

p. 6

Costs

The appeal is 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.

In the end, we do not fault the ruling of the judge. We agree that the appellant’s application for review fell short of the standards set by Order 45(1) of the Civil Procedure Rules. As a consequence, the appeal is dismissed with costs.
p. 6Final orders - dismissal of the appeal
This being a first appeal, it is our duty to consider, evaluate and analyse the evidence on record and reach our own independent conclusion in the matter.
p. 4Duty of the first appellate court
The grounds upon which a court should review its findings are enunciated in the provisions of Order 45 of the Civil Procedure Rules, 2010.
p. 5Grounds for review
Where such a review application is based on fact of the discovery of fresh evidence the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case
p. 5Caution in review applications based on fresh evidence
For an application for review under Order XLV, Rule 1 to succeed, the applicant was obliged to show that there had been discovery of new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced at that time.
p. 5Test for review under Order 45
Whether or not the appeal was filed timeously is not an issue before us; it is a preliminary issue that counsel for the respondent ought to have dealt with before the appeal was set down for hearing in line with Rules 85 & 86 of this Court's Rules.
p. 4Procedural vehicle for challenging untimely records of appeal
Following the untimely death of the Hon. Mr. Justice Fred Ochieng, before the delivery of this ruling, and there being concurrence by the remaining members of the bench, this judgment is delivered under Rule 34(4) of the Court of Appeal Rules.
p. 6Delivery of judgment upon death of a member of the bench

Issues in the judgment

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material

Internal date inconsistency: the review application is dated 10th August 2018, yet the ruling on it is described as 'dated the 28th of May 2018', which precedes the application.

minor

The record of appeal is inconsistently dated within the same paragraph ('dated 10th October 2019' then 'filed the record of appeal on 11th October 2019').

minor

F. Ochieng appears on the coram but died before delivery of the judgment, which was delivered under Rule 34(4); the printed bench listing still includes him.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njoka t/a Jofoco Contractors v Action Aid International - Kenya (Civil Appeal 276 of 2019) [2025] KECA 2081 (KLR)", Case Analysis (2025). Civil Appeal (Memorandum of Appeal dated 7th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2081/eng@2025-11-28

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