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Court of AppealDismissedSecond appeal arising from Civil Appeal (ELC Kisii); Civil Appeal No E070 of 2020 subsumed herein

Okero v Onchoke (Civil Appeal 143 of 2020) [2026] KECA 346 (KLR)

Court of Appeal
27 February 2026
2,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that review cannot be used to re-argue a lost land case; disappointed litigants must appeal instead.

What this practically means

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Executive summary

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This was a second appeal before the Court of Appeal at Kisumu arising from a land sale dispute between Haron Obonyo Okero (appellant) and Vincent Matara Onchoke (respondent) over LR No. Central Kitutu/Darajambili/625. The appellant, who claimed to have paid Kshs 2,600,000 for land whose title proved fraudulent and non-existent, sued for a refund and damages. The Chief Magistrate's Court dismissed the suit for failure to prove fraud. His application for review under Order 45 of the Civil Procedure Rules was dismissed, and the Environment and Land Court at Kisii affirmed that dismissal, holding that review could not be used as an appeal in disguise. During the plenary hearing it emerged that the appellant had filed two appeals against the same decree; the Court directed that Civil Appeal No E070 of 2020 be subsumed into this appeal. Before the Court of Appeal, the appellant argued that his claim was essentially for a refund and that its non-determination was an error apparent on the face of the record, and that the documents and criminal proceedings amounted to new evidence. The Court, confined to issues of law on a second appeal, held that the refund claim was intertwined with the fraud claim; that the alleged new evidence predated the suit; and that the criminal conviction was irrelevant, the appellant having been the complainant and the conviction later quashed. Affirming the narrow scope of review under Section 80 of the Civil Procedure Act and Order 45, and the limited basis for interfering with a trial court's discretion, the Court 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 the ELC erred in law by failing to recognize that the appellant's claim was essentially for a refund of money paid for a parcel of land that did not exist, and whether any such omission constituted an error apparent on the face of the record
  2. 2.Whether the ELC correctly interpreted and applied the principles governing review as set out in Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
  3. 3.Whether the Court of Appeal should interfere with the trial court's discretion in refusing review

Key legal issues

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01

Whether failure to separately address the prayer for refund was an error apparent on the face of the record justifying review

Holding

No. The refund claim was founded on the alleged fraud and the two issues were intertwined; the grievance, if any, was for appeal and not review.

Reasoning

The ELC had found the trial court considered the fraud issue and dismissed the claim for want of proof. Since the refund claim rested on the allegation that the respondent fraudulently obtained the purchase price, the trial court could not deal with one issue without the other. Any failure to separately address the prayer would require appellate intervention, not review, and reconsidering the issues would amount to re-evaluating evidence, which is beyond the review jurisdiction.

p. 4
02

Whether the certificate of official search, the Land Registrar's letter and the criminal proceedings constituted new and important evidence for review

Holding

No. The search certificate and Registrar's letter were available before the suit was filed and the appellant was the complainant in the criminal case whose conviction was later quashed.

Reasoning

Section 80 and Order 45 restrict review to discovery of new and important evidence not within the applicant's knowledge despite due diligence at the hearing, error apparent on the face of the record, or other sufficient reason. The documents relied on predated the suit, so there was no discovery. The criminal conviction was irrelevant since the appellant was the complainant and the conviction was quashed on appeal.

p. 4
03

Whether the Court of Appeal should interfere with the discretion of the courts below in refusing review

Holding

No. The appellant did not show that the courts below acted on wrong principle, overlooked material factors, or acted arbitrarily, capriciously or perversely.

Reasoning

The grant or refusal of review is an exercise of discretion by the trial court. An appellate court interferes only where the discretion was exercised on a wrong principle, material factors were overlooked, or the decision was arbitrary, capricious or perverse, or outside the ambit of reasonable disagreement - not merely because the appellate court would have chosen differently. The concurrent findings of both courts below were based on a proper appreciation of the law and evidence.

p. 5

Legal principles established

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  • On a second appeal, the Court is confined to issues of law only unless the lower courts considered matters they ought not to have, failed to consider matters they ought to have, or the decision was perverse
  • An error apparent on the face of the record must be self-evident and not require elaborate argument; an erroneous exposition of law or misconstruing a statute is not a ground for review
  • A review cannot be used as an appeal in disguise to fundamentally alter an erroneous decision; it lies only on the grounds in Section 80 and Order 45
  • An appellate court interferes with a trial court's discretion only where it acted on wrong principle, overlooked material factors, or acted arbitrarily, capriciously or perversely, or where the decision falls outside the general ambit within which a reasonable disagreement is possible

Court orders

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  1. 1.Civil Appeal No E070 of 2020 subsumed into this appeal, with this judgment to apply mutatis mutandis to it
  2. 2.The 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
Environment and Land Court at Kisii
Jurisdiction invoked
Second appeal to the Court of Appeal, confined to matters of law
Consolidated with
Civil Appeal No E070 of 2020

Relief refused

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Setting aside the ELC judgment and allowing the application for review

The claim for refund was intertwined with the fraud claim; any grievance was fit for appeal, not review, and review cannot be used as an appeal in disguise

p. 4

Costs

The appeal was 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.

Accordingly, we find no merit in this appeal which is hereby dismissed with costs to the respondent.
p. 5Final orders - dismissal of the appeal
on a second appeal, this Court is confined to dealing with issues of law only unless it is demonstrated that the courts below considered matters, they ought not to have considered or failed to consider matters they ought to have considered, or that the decision was perverse.
p. 4Scope of a second appeal
a review ought not to be done in a manner that can be construed as an appeal in disguise whereby an erroneous decision is determined afresh and fundamentally altered.
p. 5Limits of the review jurisdiction
That cannot be the jurisdiction of a court on an application for review. The two courts below were therefore correct in holding that the issue was fit for appeal and not review.
p. 4Grievances fit for appeal, not review
review jurisdiction is not an avenue to re-litigate matters already determined
p. 5Review as distinct from appellate jurisdiction

Issues in the judgment

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minor

The judgment refers to the same authority under two different name spellings, apparently as one case

minor

The judgment text is corrupted with OCR errors, e.g. 'suficient' for 'sufficient', 'oficial' for 'official', 'difierent' for 'different'

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, "Okero v Onchoke (Civil Appeal 143 of 2020) [2026] KECA 346 (KLR)", Case Analysis (2026). Second appeal arising from Civil Appeal (ELC Kisii); Civil Appeal No E070 of 2020 subsumed herein. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/346/eng@2026-02-27

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