1

APPEAL

1. INTRODUCTION:

 The Constitutional1 and legal framework in Kenya provides that if either party to the
case is dissatisfied after the trial Court renders a judgment; such a party has a right to
file an appeal in an Appellate Court.
 The party who files an appeal is referred to as an ‘appellant’ and the adverse party is
called an ‘appellee’ or ‘respondent.’
 The appellant, for instance, has a burden of convincing the Appellate Court that the
Trial Court committed a legal or procedural error in its interpretation of the law.

2. MEANING OF THE TERM ‘APPEAL’:

 Appeal is a judicial examination by the higher Court of the decision of a lower Court.
It may also be a written petition to a higher Court to modify or reverse a decision of a
lower Court (either a Trial Court or Intermediate Level Appellate Court).2

3. DIFFERENCE BETWEEN APPEAL AND REVIEW:

S/NO APPEAL REVIEW

1 Appeal lies to a superior Court Review lies to the same Court
2 Appeal is heard by a different Judge Review of a judgment involves
reconsideration of
the same subject matter by the same
Judge
3 Grounds of appeal are wider Are not
4 Second appeal lies on a substantial Second review application does not
question of law exist

1
Article 50(2)(q), Constitution of Kenya, 2010.
2
Nolo's Plain-English Law Dictionary”,
<[Link] Accessed on 21st March 2025..

DR. AGATA BENARD, KENYATTA UNIVERSITY, SCHOOL OF LAW, PARKLANDS CAMPUS, NAIROBI
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4. PROCEDURE OF APPEAL: PROVISIONS UNDER THE CIVIL PROCEDURE

ACT/RULES

 The major provisions relating to appeals are contained in Part VIII of the Civil
Procedure Act, Cap 21 and Order 42 to 44 of the Civil Procedure Rules, 2010. Under
Part VIII of the Civil Procedure Act, Cap 21, the provisions are grouped into the
following:
i. Appeals from original decrees;
ii. Appeals from appellate decrees of a Subordinate Court;
iii. Appeals from appellate decrees of the High Court;
iv. Appeals from orders; and
v. General provisions relating to appeals.

Explanation of Each is as follows:

4.1 Appeals from original decrees:

The provisions are:
a) Appeal from other Courts to the High Court
Upon furnishing of security as may be prescribed, Section 65 of the Civil Procedure
Act, Cap 21 provides that an appeal shall lie to the High Court from:
i. Any original decree3 or part of a decree of a Subordinate Court, (other than
a Magistrate’s Court of the Third Class), on a question of law or fact;
ii. A decree or part of a decree of a Kadhi’s Court, and on such an appeal, the
Chief Kadhi or two other Kadhis shall sit as an assessor or assessors.

Similarly, Section 11(1) of the Magistrates’ Court Act, Cap 10 provides that any
person, who is aggrieved by an order of a Magistrate’s Court of the Third Class made
in a proceeding, may appeal against such order to a Magistrate’s Court of First Class.
In Taparu v. Rotei, 4 Trevelyan J. observed that an appeal from a Magistrate’s Court of
Third Class to the High Court is incompetent unless it has gone through the
Magistrate’s Court of First Class.

3
For e.g., original decrees passed ex parte.
4
Taparu v. Rotei, (1968) EA 618 , p. 619.

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b) Security for costs

Order 42, Rule 14 lays down that after the Memorandum of Appeal has been served,
the Court may order the appellant to give security for the whole or any part of the
costs of such appeal. But if such security is not given within the time ordered, the
Court is empowered to dismiss the appeal. How to prepare a Memorandum of Appeal:
It is prepared by carefully considering the following: a) Pleadings; b) Issues; c)
Findings thereon; d) Judgment and the decree; and e) the record of proceeding in
Court.
c) Form of appeal (requirements of a valid appeal)
Under Order 42, Rule 1, appeals are required to be in the form of a Memorandum of
Appeal signed in the same manner as a pleading. Such Memorandum of Appeal must
set forth concisely and under distinct heads:
i. The grounds of objection to the decree or order appealed against, without
any argument or narrative, and
ii. Such grounds shall be numbered consecutively.
iii. The grounds must indicate the reasons why the applicant objects to the
decision of the trial Court.
iv. It be accompanied by a certified copy of the decree at the time of filing
appeal (Order 42, Rule 2)
v. It must be presented to the Court or to such officer as appointed by the
Court.
vi. It must be signed and dated by the appellant or their agent.
d) Presentation of the appeal
The appeal must be presented within a prescribed time. If the limitation period for
filing an appeal has expired, you can apply for an extension of time to file the appeal.
e) Notice to be given where decree appealed from
Order 42, Rule 15 provides that when a Memorandum of Appeal is lodged, the Court
to which such appeal is preferred must send notice of the appeal to the Court from
where the appeal is preferred. The Court receiving such notice is mandated to send all
material papers in the suit, or such papers as may be specially called for.
f) Service of hearing notice
Under Order 42, Rule 17, notice indicating the day fixed for hearing of the appeal
should also be served on the respondent or his advocate in the manner provided for

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under Order 5. Such notice must declare that, failure of the respondent to appear in
the Court as required, the appeal may be heard ex parte.5
g) Amendment of memorandum of appeal
Order 42, Rule 3, the appellant is empowered to amend his Memorandum of Appeal
without leave at any time before the Court gives directions under Rule 13.
h) Right to begin
Under Order 42, Rule 19, the appellant has the first right to begin the case in support
of the appeal. The Court shall then, if it does not dismiss the appeal at once, hear the
respondent against the appeal, and in such case the appellant is entitled to reply.
i) Dismissal of appeal for appellant’s default
Order 42, Rule 20 provides that where on the day fixed, the appellant fails to appear
when the appeal is called on for hearing, and has not filed a declaration under Rule 16,
the Court may dismiss the appeal. Similarly, where the appellant appears, and the
respondent does not, the appeal may be heard ex parte. But such appeal may be
readmitted upon incase a party is prevented by any sufficient cause from appearing.6
j) Appeal from decree of High Court
Upon furnishing of security as may be prescribed, Section 66 of the Civil Procedure
Act, Cap 21 provides that an appeal shall lie from the decrees or any part of decrees
and from the orders of the High Court to the “Court of Appeal.” Appeals from the
Court of Appeal lie to the Supreme Court. In Cowasjee Dinshaw & Brothers Ltd.
case,7 the Court held that an appeal lies to the Court of Appeal from the decisions of
the High Court only on a question of law.
k) Appeal from final decree where no appeal from preliminary decree
Under Section 68, if any party aggrieved by a preliminary decree does not appeal
from that decree, s/he shall be barred from disputing its correctness in any appeal
which may be preferred from the final decree.
l) Decision where appeal is heard by two or more Judges
Section 69 provides that where an appeal is heard by a Court consisting of two or
more Judges, it must be decided in accordance with the opinion of the Judges or a
majority of them. However, where a Court consisting of two Judges is divided in its

5
Order 42, Rule 18, the Civil Procedure Rules, 2010.
6
Order 42, Rule 21, the Civil Procedure Rules, 2010
7
Cowasjee Dinshaw & Brothers Ltd. v. Cowasjee Staff Association, 1961 EA 436

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opinion, the appeal must be reheard by a Court consisting of an uneven number of

Judges being not less than three.
4.2 Appeals from appellate decrees of a Subordinate Court
(a) Second appeal from Subordinate Court
Upon furnishing of security as may be prescribed, Section 71A provides that an
appeal shall lie to the High Court from a decree passed by a Subordinate Court of the
First Class on an appeal from a Subordinate Court of the Third Class, on a question of
law only. Such an appeal shall be final.
4.3 Appeals from appellate decrees of the High Court
a. Second appeal from the High Court
Under Section 72, an appeal lies to the Court of Appeal from every decree passed in
appeal by the High Court, on any of the following grounds, namely, the:
 Decision being contrary to law or to some usage having the force of law;
 Decision having failed to determine some material issue of law or usage having the
force of law;
 Substantial error or defect in the procedure provided by Civil Procedure Act, Cap 21
or by any other law for the time being in force, which may possibly have produced
error or defect in the decision of the case upon the merits.
An appeal may lie under Section 72 from an appellate decree passed ex parte.
4.3.1 Grounds which may be taken in appeal
 Order 42, Rule 4 moreover provides that, except with leave of the Court,
 The appellant cannot plead on any ground of objection not set forth in the
Memorandum of Appeal. However, while deciding the appeal, the High Court cannot
be confined to the grounds of objection set forth in the Memorandum of Appeal but
the High Court cannot rest its decision on any other ground unless the party who may
be affected thereby has had a sufficient opportunity of contesting the case on that
ground.
4.3.2 Several plaintiffs/defendants appealing on a common ground
Order 42, Rule 5 provides that, where there are more than one plaintiff/defendant in a
suit, and the decree appealed from proceeds on any ground common to all the
plaintiffs/defendants, any one of the plaintiff/defendant may appeal for the whole
decree and thereupon, the High Court may reverse or vary the decree in favour of all
the plaintiffs/defendants.

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4.3.3 Value of subject-matter

Section 79E further provides that no second appeal from a decree passed in appeal by
the High Court shall lie in any suit when the amount or value of the subject-matter of
the original suit does not exceed Ksh.10,000 unless special leave has been first
obtained from the Court before whom the appeal is to be heard.
4.4 Appeals from Orders
4.4.1 Orders from which appeal lies
Section 75 clearly lays down that an appeal shall lie as of right/with the leave of the
Court making such order, from the following orders, an order:
a) Superseding an arbitration where the award has not been completed within
the period allowed by the Court;
b) On an award stated in the form of a special case;
c) Modifying or correcting an award;
d) Staying or refusing to stay a suit where there is an agreement to refer to
arbitration;
e) Filing or refusing to file an award in an arbitration without the intervention
of the Court;
f) Under Section 64 that provides for compensation for arrest, attachment or
injunction on insufficient grounds;
g) Under any of the provisions of the Act imposing a fine or directing the
arrest or detention in prison of any person except where the arrest or
detention is in execution of a decree;
h) Made under rules from which an appeal is expressly allowed by rules.
4.4.2 Right of appeal can be barred
Under Section 76, where any party aggrieved by an order of remand from which an
appeal lies does not appeal therefrom, s/he can thereafter be precluded from disputing
its correctness.
4.4.3 Court to hear appeal
Where an appeal from any order is allowed, Section 77 provides that it shall lie to the
Court to which an appeal would lie from the decree in the suit in which the order was
made.

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5. General provisions relating to Appeals

5.1 Powers of Appellate Court

An Appellate Court, under Section 78, has the same powers and can perform as nearly as may
be the same duties as are conferred and imposed by the Act on Courts of original jurisdiction
in respect of suits instituted therein. Moreover, such a Court is empowered to:

a) Determine a case finally;

b) Remand a case;
c) Frame issues and refer them for trial;
d) Order a new trial
e) Take additional evidence or to require the evidence to be taken.

5.2 No decree to be altered for error not affecting merits or jurisdiction

Under Section 79A, no decree can be reversed or substantially varied, nor remanded, in
appeal on account of any misjoinder of parties, or any error, defect or irregularity in any
proceedings in the suit, not affecting the merits of the case, or Court jurisdiction.

5.3 Summary rejection of appeal

Section 79B provides that before an appeal from a Subordinate Court to the High Court is
heard, a Judge of the High Court shall peruse it, and if s/he considers that there is no
sufficient ground for interfering with the decree, or part of a decree or order appealed against,
s/he may, notwithstanding Section 79C, reject the appeal summarily.

5.4 Mode of hearing appeal

Section 79C candidly lays down that appeals from Subordinate Courts shall be heard by one
Judge of the High Court except when in any particular case the Chief Justice directs that the
appeal be heard by two or more Judges of the High Court; and such direction may be given
before the hearing of the appeal or at any time before judgment is delivered.

5.5 Appeals by paupers

Section 79F and Order 44, Rule 1 lays down provisions relating to persons eligible as paupers
for filing appeals. Any person who is unable to pay the fee required for the Memorandum of
Appeal, may present an application to the Court and be allowed to appeal as a pauper.8 Such a

8
Order 44, Rule 1, the Civil Procedure Rules, 2010.

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person who has been allowed to take, defend or be a party to any legal proceedings in a
Subordinate Court as a pauper9 may not appeal to the High Court, or from the High Court to
the Court of Appeal, except with the leave of the Court before whom the proceedings
appealed against were heard or (if such leave is refused) unless special leave has been first
obtained from the Court before whom the appeal is to be heard.10

5.6 Time for filing appeals from Subordinate Courts

Section 79G provides that appeals from a Subordinate Court to the High Court can be filed
within a period of 30 days from the date of the decree or order appealed against, excluding
such period which the lower Court may certify as having been requisite for the preparation
and delivery to the appellant of a copy of the decree or order. However, an appeal may be
admitted out of time if the appellant satisfies the Court that s/he had good and sufficient cause
for not filing the appeal in time.

5.7 Stay of execution in case of appeal

Under Order 42, Rule 6(1) no appeal can operate as a stay of execution or proceedings under
a decree or order appealed from except in so far as the Court appealed from may, for
sufficient cause, order stay of such execution. However, whether the application for such stay
is granted or refused by such Court, the appellate Court is at liberty, on application being
made, to consider such application and to make such orders as it may deem just, and any
person aggrieved by such an order of stay, may apply to the appellate Court to have it set
aside.

An application for stay of execution can be made informally immediately following the
delivery of judgment or ruling11 but, the procedure for instituting an appeal must be complied
with.12

5.8 Grounds to stay execution in case of appeal

Order 42, Rule 6(2) provides that no order for stay of execution can be granted unless the:

i. Court is satisfied that substantial loss may result to the applicant unless the order
is made;

9
Pauper – is a recipient of poor law relief. In other words, it is a very poor person.
10
Section 79F, the Civil Procedure Act, Cap 21
11
Rule 6(5), the Civil Procedure Rules, 2010.
12
Ibid, Rule 6(6).

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ii. Application has been made without unreasonable delay; and

iii. Applicant has given such security as the Court orders for the due performance of
such decree or order as may ultimately be binding on him.
But, no security is required to be given in case the applicant is the Government or
a public officer sued in respect of an act alleged to be done by him in his official
capacity.13

5.9 Remand of cases

Order 42, Rule 24 provides that where the Court from whose decree an appeal is preferred
has disposed of the suit upon a preliminary point, and the decree is reversed on appeal, the
Court to which the appeal is preferred may, if it deems fit, by order:

i. Remand the case;14

ii. Direct what issue or issues shall be tried in the case so remanded;15
iii. Send a copy of its judgment and order to the Court from whose decree the appeal is
preferred, with directions to re-admit the suit under its original number in the register
of civil suits, and proceed to determine it as per the directions of the Court of Appeal;
and
iv. The evidence, if any, recorded during the original trial shall, subject to all just
exceptions, be evidence during the trial after remand.

5.9.1 When can the Court of Appeal remand a case?

i. Where the Trial Court disposed off the case on preliminary point16 without hearing
and recording evidence on other issues.
ii. Where the Appellate Court disagrees with the Trial Court. In such a case the Appellate
Court will set aside the judgment and decree of the Trial Court and remand the case to
the Trial Court for re-hearing and determination.

13
Ibid, Order 42, Rule 8.
14
Remand’ basically means to send back
15
The Court of Appeal will exercise this power where the Trial Court did not frame issues properly or omitted to
try a certain issue or omitted to determine a certain question of fact which is essential for determining the suit on
merits. The Court may frame such issues and then refer them to the lower Court, with certain directions, to be
tried.
16
‘Preliminary Point’ means’ if it is such that the decision thereon in a particular way is sufficient to dispose of
the whole suit without the necessity of a decision on the other points of the case. A preliminary point may be one
of fact or of law. But, the decision thereon must have avoided the necessity for a full hearing of the suit. For e.g.,
Preliminary Point of Law: i.e., issues of limitation of time, or the doctrine of Res Judicata, or pleadings which
do not disclose a course of action. Preliminary Point of Fact: i.e., if a lower Court dismisses the suit on the
ground that the plaintiff is estopped from proving his case because there was a prior agreement relating to the
facts

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In Wambui Otieno case17 by passing an order of remand, the Appellate Court directed
the lower Court to reopen and retry the case.18

5.9.2 Power to order new trial

Under Order 42, Rule 26, if upon the hearing of an appeal it shall appears to the Court to
which the appeal is preferred that a new trial ought to be had, it shall be lawful for the said
Court to order that the judgment and decree be set aside, and that a new trial be had.

5.9.3 Documents

Order 42, Rule 13(4) provides that before allowing the appeal to go for hearing, the Judge
must be satisfied that the following documents are on the Court record, and that such of them
as are not in the possession of either party, have been served on that party, they include, the:

i. Memorandum of appeal;
ii. Pleadings;
iii. Notes of the Trial Magistrate made at the hearing;
iv. Transcript of any official shorthand, typist notes electronic recording or
palantypist notes made at the hearing.
v. All affidavits, maps and other documents whatsoever put in evidence
before the Magistrate;
vi. Judgment, order or decree appealed from, and, where appropriate, the
order, if any, giving leave to appeal.
However,
 A translation into English must be provided of any document not in English;
 The Judge may dispense with the production of any document or part of a
document which is not relevant, other than Memorandum of Appeal, Pleadings
and judgment, order or decree appealed.
5.9.4 Production of additional evidence in Appellate Court
Under Order 42, Rule 27 parties to an appeal are not entitled to produce additional
evidence, whether oral or documentary, in the Court to which the appeal is preferred.

17
Virginia Edith Wambui v. Joash Ochieng Ougo and Omolo Siranga, Civil Case No. 4873 of 1986
18
This was a controversial legal battle between Wambui and her husband (S. M. Otieno) clan over the right to
bury her husband. The issues in this case were: a) whether deceased’s widow was entitled to bury deceased’s
body b) whether Luo customary law was applicable to the deceased, and c) whether deceased’s brother and clan
was entitled to bury the deceased in accordance with Luo customs? The Court directed that the deceased be
buried according to the Luo custom.

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However, production of additional evidence can be permitted, after recording the

reason for its admission, only if the Court:
i. From whose decree the appeal is preferred has refused to admit evidence
which ought to have been admitted; or
ii. To which the appeal is preferred requires any document to be produced, or any
witness to be examined, to enable it to pronounce judgment; or
iii. For any other substantial cause.
5.9.5 Mode of taking additional evidence
Order 42, Rule 28 provides that wherever additional evidence is allowed to be
produced, the Court to which the appeal is preferred may:
a) Either take such evidence; or
b) Direct the Court from whose decree the appeal is preferred; or
c) Any other Subordinate Court, to take such evidence and to send it to the
Court to which the appeal is preferred.
5.9.6 Judgment
Order 42, Rule 31 lays down that the judgment may be for confirming, varying or
reversing the decree from which the appeal is preferred.
5.9.7 Certified copy of decree to be sent to Court whose decree appealed from
Order 42, Rule 34 provides that a copy of the judgment and of the decree, certified by
the High Court, or such officer as it appoints, must be sent to the Court which passed
the decree appealed from, and must be filed with the original proceedings in the suit,
and an entry of the judgment of the Court to which the appeal is preferred shall be
made in the register of civil suits.

9.10 Appeals from Orders

Order 43, Rule 1, an appeal can lie as of right from the following Orders and Rules under the
provisions of Section 75(1)(h) of the Civil Procedure Act, Cap 21:

a) Order 1 (parties to suits);

b) Order 2 (pleadings generally);
c) Order 3 (frame and institution of suit);
d) Order 4, Rule 9 (return of plaint);
e) Order 7, Rule 12 (exclusion of counterclaim);
f) Order 8 (amendment of pleadings);

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g) Order 10, Rule 11 (setting aside judgment in default of appearance);

h) Order 12, Rule 7 (setting aside judgment or dismissal for non-attendance);
i) Order 15, Rules 10, 12 and 18 (sanctions against witnesses and parties in certain
cases);
j) Order 19 (affidavits);
k) Order 22, Rules 25, 57, 61(3) and 73 (orders in execution);
l) Order 23, Rule 7 (trial of claim of third person in attachment of debts);
m) Order 24, Rules 5, 6 and 7 (legal representatives);
n) Order 25, Rule 5 (compromise of a suit);
o) Order 26, Rules 1 and 5(2) (security for costs);
p) Order 27, Rules 3 and 10 (payment into Court and tender);
q) Order 28, Rule 4 (orders in proceedings against the Government);
r) Order 34 (inter-pleader);
s) Order 36, Rules 5, 7 and 10 (summary procedure);
t) Order 39, Rules 2, 4 and 6 (furnishing security);
u) Order 40, Rules 1, 2, 3,7 and 11 (temporary injunctions);
v) Order 41, Rules 1 and 4 (receivers);
w) Order 42, Rules 3, 14, 21, 23 and 35 (appeals);
x) Order 45, Rule 3 (application for review);
y) Order 50, Rule 6 (enlargement of time);
z) Order 52, Rules 4, 5, 6 and 7 (advocates) and Order 53 (judicial review orders).

REVIEW OF DECREES AND/OR ORDERS

1. INTRODUCTION:
 The Plain Error Doctrine which is a highly prejudicial error affecting
substantial rights19 allows an Appellate Court to review errors not preserved in
the record when such errors may result in a miscarriage of justice or seriously
affect the basic fairness, integrity, and public reputation of a judicial process.20
 The provisions relating to review constitute an exception to the general rule
that once a judgment is signed and pronounced by the Court it becomes fantus
official, i.e., Court ceases to have any control over the matter or any

19
U.S. v. Giese, 597 F.2d 1170, 1199, 1979.
20
U.S. v. Smith, 962 F.2d 923, 935 (9th Cir. 1992),

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jurisdiction to alter it. The power of review is thus an exception to this rule
since it allows the same Judge to look at his own judgment once again and
correct it.
 The process of review requires notice of review, obtaining a transcript of the
trial or hearing at the trial level, obtaining all the pleadings and other
documents filed in the original trial, preparation of briefs citing precedents and
arguing that there was reversible error.
 When you have a judgment you extract a decree. Orders are gotten from
interim applications.
2. MEANING OF THE TERM ‘REVIEW’:
 De novo ‘review’ refers to the authority the Appellate Court to review the Trial
Court's conclusions on questions of the application, interpretation, and
construction of law.
 Review also refers to reexamine judicially or administratively; a judicial
reconsideration for purposes of correction and/or determining if there were
legal errors sufficient to require reversal.
3. REVIEW OF DECREES AND/OR ORDERS
3.1 Provisions Under The Civil Procedure Act/Rules
The key provisions relating to review are contained in Part IX of the Civil Procedure
Act, Cap 21 and Order 45 of the Civil Procedure Rules, 2010. They include:
3.1.1 Persons eligible and grounds of review
Under Section 80 of the Civil Procedure Act, Cap 21, and Order 45, Rule 1 of the
Civil Procedure Rules, 2010 any person who considers himself aggrieved21 by a
decree or
order from which an appeal is allowed, but from which no appeal has been preferred;
or no appeal is allowed; and who:
(a) From the discovery of new and important matter or evidence
 which, after the exercise of due diligence, was not within his knowledge or
could not be produced by him at the time when the decree was passed or
the order made;

21
Aggrieved party is a person who has suffered such legal grievance or against whom a decision has been made,
or a person who has been deprived of something or affected by the decision.

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 In Mary Josephine v. Sydney, the case related to a decree for the

restitution of conjugal rights. It had already been passed and it was
subsequently discovered that the parties were cousins and therefore the
marriage was in fact null and void. In this case review was granted.
 In the case of Khan v. Ibrahim, a Kenyan Court had issued a
communication for examination of witnesses in Pakistan. Later, the Court
discovered that there was no reciprocal arrangement between the two
countries. This was held to be a good reason for review, or
(b) On account of some mistake or error apparent on the face of the record
 The term ‘error apparent on the record’ is not defined by the Civil
Procedure Act, Cap 21 and it cannot also be conclusively and satisfactorily
defined. An error can be said to be apparent if it is self-evident and
requires no examination or argument to establish it. An error can be an
error of fact or error of law.
 In Thumbbhadra case, the Supreme Court attempted to define this
particular ground and it held that an error is apparent where it is indicative
without any elaborated argument. There is no need to travel beyond the
record to establish that it was an error; or
(c) For any other sufficient reason
Desires to obtain a review of the decree or order, may apply for a review of
judgment to the Court which passed the decree or made the order without
unreasonable delay and the Court may make such order thereon as it thinks fit.

3.1.2 To whom applications for review may be made

Order 45, Rule 2 provides that an application for review of a decree or order of a Court, upon
some ground other than:

i. The discovery of such new and important matter or evidence, or

ii. The existence of a clerical or arithmetical mistake, or
iii. Error apparent on the face of the decree, shall be made only to the Judge who
passed the decree, or made the order sought to be reviewed.
 If the Judge who passed the decree or made the order is no longer attached to the
Court, the application may be heard by any other Judge who is attached to that Court

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at the time the application comes for hearing. If the Judge who passed the decree or
made the order is still attached to the Court but is precluded
by absence or other cause for a period of 3 months next after the application for
review is lodged, the application may be heard by such other judge as the Chief
Justice may designate.

3.1.3 When Court may grant or reject application for a review

Under Order 45, Rule 3 where:

a) It appears to the Court that there is no sufficient ground for a review, it shall dismiss
the application;
b) The Court is of the opinion that the application for review should be granted, it shall
grant the same.
However,
without strict proof of allegations, no application can be granted on the ground of
discovery of new matter or evidence which the applicant alleges was not within his
knowledge, or could not be adduced by him when the decree or order was passed.

3.1.4 Application where more than one Judge hears

Order 45, Rule 4 provides that where:

i. The application for a review is heard by more than one Judge and the Court is equally
divided, the application shall be dismissed.
ii. There is a majority, the decision shall be according to the opinion of the majority.

3.1.5 Bar of subsequent applications

Under Order 45, Rule 6, no application to review an order made on an application for a
review of a decree or order passed or made on a review can be entertained.

3.1.6 The procedure at the hearing

Application for review may be divided into three stages:

i. First stage
An application for review commences with an ex parte application by the aggrieved
party.

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Upon such application, the Court may reject it at once if there is no sufficient ground
or, it may issue a notice calling upon the opposing party to show cause why review
should not be granted.
ii. Second stage
At this stage, the application shall be heard inter parties by the same Court that passed
the decree. Upon hearing both parties, the Court may decide whether to proceed for
review or reject the application. If the application is granted, the matter proceeds to
the next stage.
iii. Third stage
iv. At this stage, the matter is heard on the merits. Usually, the Court can hear it at once,
or may fix a later date for hearing.
The Court will hear the matter in relation to that case, where the mistake was, or in
relation to the new evidence that came into light. Once the Court completes hearing
the case, it will either confirm its original decree or vary it.
In case the Court varies the decree, the aggrieved party has a right to file an appeal.

3.1.7 Whether review can take the place of an appeal?

In National Bank of Kenya case,22 the Court held that review cannot take the place of an
appeal.

The fact that a Judge erred is not a sufficient ground for review within Section 80 of the Civil
Procedure Act, Cap 21.

The alternative for such an aggrieved party is to file an appeal.

The Court further observed that: A review may be granted whenever the Court considers that
it is necessary to correct an apparent error or omission on the part of the Court. The error or
omission must be such evidence that should not require an elaborate argument to be
established. It will not be a sufficient ground for review that another Judge would have taken
a different view in the matter. Misconstruing a Statute or other provisions of the law, cannot
be a ground of review. In the instance case, the matter in dispute had been fully canvassed
before a learned Judge who made a conscious decision on the matter in controversy and
exercised his discretion in favour of appellant. If he had hit the wrong conclusion of law, it
could only be a good ground for appeal but not review.

22
National Bank of Kenya v. Ndung’u Njau, Civil Appeal No. 211 of 1996.

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APPLICATIONS FOR JUDICIAL REVIEW (ORDER 53)

a. INTRODUCTION:
 This is the law concerning judicial control of the powers, functions and procedures of
administrative authorities
 Judicial Review refers to the examination of the manner in which a decision has been
made or of an act which has been done by a public body.
 In Chief Constable of North Water Police v. Evans,23 it was stated that the purpose of
Judicial Review is to:
i. Prevent excessive exercise of powers by administrative bodies and officials;
ii. Ensure that an individual is given fair treatment by administrative, judicial
and/or quasi-judicial bodies;
iii. Keep administrative excesses in check and
iv. Provide a remedy to those aggrieved as a result of excessive exercise of power
by administrative bodies.
b. GROUNDS FOR JUDICIAL REVIEW:
In Council of Civil Service Union,24 Lord Diplock has suggested the following three-fold
classification of the various grounds on which an administrative decision can be reviewed
by a Court:
2.1 Irrationality
 Irrationality denotes unreasonableness in the sense of Wednesbury unreasonableness
principle in that it applies to a decision which is so outrageous in its defiance of logic or
of accepted moral standards that no sensible person in his mind to the question to be
decided could have arrived at it.
 Whether a decision falls within this category is a question that judges squarely need to
answer after sensibly determining that the claimant is able to provide a strong clear case
2.2 Procedural impropriety
Procedural impropriety refers to failure of the decision making authority to observe
procedural rules including rules of natural justice or fairness wherever they are applicable.
For example:

23
(1982) 1 WLR 1155.
24
Council of Civil Service Union v. Minister for Civil Services, (1985) 1 AC 374

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2.2.1 Failure to give each party to a dispute an opportunity to be heard

A competent authority is mandated to give each party to the dispute a fair opportunity to
put their case.

a) Bias

Any sign of bias on the part of the competent authority may call for judicial intervention.
Generally, bias arises if a person is a relative of one of the parties, or has had a past
professional association with one of the parties.

b) Failure to consult properly

It has been observed that for consultation to be held proper adequate time must be given
for the purpose and the product of consultation must be consciously taken into account
when the ultimate decision is taken.

c) Failure to give adequate reasons

The duty to give reasons principally arises where it is expressly required in legislation;
where it is called for in fairness, under the duty of candour owed by a body under
challenge and where a response which is unreasoned may be seen as unreasonable. Where
there is a call to give reasons, a body is obliged to give reasons which are proper,
adequate and intelligible to enable the persons affected to know why they have won or
lost.

d) Legitimate expectation

The doctrine of legitimate expectation arises where a public body has made a promise of
a benefit, and it then goes back on this promise. Such promise amount to an abuse of
power and thus calls for judicial intervention. It therefore derives from need to secure
certainty and predictability in executive actions.

2.3 Illegality

The authority making decisions is required to understand correctly the law that regulates
his/her decision-making power and must therefore, give effect to it by ensuring that his
decisions are within his/her legal power.25

25
Captain Geoffrey Kujoga Murungi v. Attorney General, Misc Civil App. No. 293 of 1993

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Illegality thus, arise as follows:

2.3.1 When the decision-maker acts ultra vires

A decision-maker acts ultra vires if he acts beyond his prescribed powers, or where he
does not follow a particular procedure already prescribed in a Statute, etc. The police and
other competent authorities in the criminal justice system should exercise their powers
within the confines of the law. Every exercise of power by such authorities that derogates
from legislative intent is considered ultra vires.

There are two types of ultra vires:

a. Substantive ultra vires

It is where an authority has done or decides to do an act knowing that it lacks legal
capacity or lawful jurisdiction to do it;
b. Procedural ultra vires
It is where an authority authorized to do something, while doing it, it fails to meet
some requirement attached to the lawful exercise of the power
2.3.2 Unlawfully delegating power or fettering discretion

Where a legislation confers power on a specified individual or body, the power cannot be
delegated to another person or body.26

2.3.3 Irrelevant considerations

A claim for judicial review can also lie where a competent authority has either
disregarded a relevant consideration, or taken into account an irrelevant consideration
when reaching a decision.

2.3.4 Abuse of power

This can take the form of failure to exercise power, or exercising power for
improper purpose, etc.
2.3.5 Bad faith

Powers vested in competent authority must be exercised in good faith. A decision that
results from an exercise of power in bad faith is unfair and lends itself to being quashed
by certiorari. For instance, ill motives actuated a public officer to do an illegal act.

26
Lumumba P. L. O., An Outline of Judicial Review in Kenya 58-83, (University of Nairobi, 1999).

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2.3.6 Error of law or on the fact of record

It can also lead to judicial review.

[Link] Natural justice

Failure of an authority to follow principles of natural justice.

[Link] Proportionality

This seeks to strike a balance between adverse effects of an administrative action/decision

has on rights and liberties of individual and public interest.27

3. JUDICIAL REVIEW ORDERS:

Judicial review is used for seeking:

(a) A mandatory order (i.e., an order requiring a public body to do something, also known
as an order of mandamus); or
(b) A prohibiting order (i.e., an order preventing the public body from doing something,
also known as an order of prohibition) i.e., the High Court can direct an inferior Court
or Tribunal or body from acting in excess of jurisdiction, or in contravention of the
law; or
(c) A quashing order (i.e., an order quashing the public body’s decision, also known as an
order of certiorari) i.e., decisions of an inferior Court and Tribunal; or
(d) A declaration and/or damages.

4. PROVISIONS UNDER THE CIVIL PROCEDURE RULES, 2010:

4.1 Applications for mandamus, prohibition and Certiorari to be made only with
leave

 Order 53, Rule 1 provides that no application for an order of mandamus,

prohibition or certiorari shall be made unless leave therefor has been granted by
the Court. An application for such leave is made ex parte to a judge in chambers,
and shall be accompanied by a statement setting out the name and description of
the applicant, the relief sought, and the grounds on which it is sought, and by
affidavits verifying the facts relied on.

27
Kanyingi v. TLB, Misc. Civil App. 1214/04.

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 The judge may, in granting leave, impose such terms as to costs and as to giving
security as he thinks fit including cash deposit, bank guarantee or insurance bond
from a reputable institution. The grant of leave to apply for an order of prohibition
or certiorari shall, if the judge so directs, operate as a stay of the proceedings in
question until the determination of the application, or until the judge orders
otherwise, provided that where the circumstances so require, the judge may direct
that:
(a) The application be served for hearing inter partes before grant of leave;
(b) the question of leave and whether grant of leave shall operate as stay,
may be heard and determined separately within 7 days.
4.1.1 Factors determining the grant of leave:
(a) Merit of the case –The application must neither be vexatious or frivolous
otherwise it will be refused.
(b) Delay – has the application been made promptness or is it barred by the
doctrine of laches.
(c) Failure of public duty by the authority.
(d) Locus standi of the applicant on the face of it.
(e) The applicant must show that he has an arguable application, or prima facie
case worth meritorious consideration and determination by the High Court;
(f) Courts should ensure that the substantive application for judicial review, if
successful, is not rendered nugatory
4.1.2 Time for applying for certiorari in certain cases
 Order 53, Rule 2 provides that leave shall not be granted to apply for an order of
certiorari to remove any judgment, order, decree, conviction or other proceeding
for the purpose of its being quashed, unless the application for leave is made not
later than 6 months after the date of the proceeding or such shorter period as may
be prescribed by any Act; and where the proceeding is subject to appeal and a time
is limited by law for the bringing of the appeal, the Judge may adjourn the
application for leave until the appeal is determined or the time for appealing has
expired.
 Thus, for seeking an order for certiorari, one must make an application within 6
months from the date of the act.

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4.1.3 Application to be by notice of motion

 Order 53, Rule 3 provides that when leave has been granted to apply for an order
of mandamus, prohibition or certiorari, the application shall be made within 21
days by Notice of Motion to the High Court, and there shall, unless the Judge
granting leave has otherwise directed, be at least eight clear days between the
service of the notice of motion and the day named therein for the hearing. The
notice shall be served on all persons directly affected, and where it relates to any
proceedings in or before a Court, and the object is either to compel the Court or an
officer thereof to do any action in relation to the proceedings or to quash them or
any order made therein, the notice of motion shall be served on the presiding
officer of the Court and on all parties to the proceedings.
 An affidavit giving the names and addresses of, and the place and date of service
on, all persons who have been served with the notice of motion shall be filed
before the notice is set down for hearing, and, if any person who ought to be
served under the provisions of this rule has not been served, the affidavit shall
state that fact and the reason why service has not been effected, and the affidavit
shall be before the High Court on the hearing of the motion.
 If on the hearing of the motion the High Court is of the opinion that any person
who ought to have been served therewith has not been served, the High Court may
adjourn the hearing, in order that the notice may be served on that person, upon
such terms (if any) as the Court may direct.
4.1.4 Statements and affidavits

Order 53, Rule 4 provides that copies of the statement accompanying the application for
leave shall be served with the notice of motion, and copies of any affidavits
accompanying the application for leave shall be supplied on demand and no grounds shall,
subject as hereafter in this rule provided, be relied upon or any relief sought at the hearing
of the motion except the grounds and relief set out in the said statement. The High Court
may on the hearing of the motion allow the said statement to be amended, and may allow
further affidavits to be used if they deal with new matter arising out of the affidavits of
any other party to the application, and where the applicant intends to ask to be allowed to
amend his statement or use further affidavits, he shall give notice of his intention and of
any proposed amendment of his statement, and shall supply on demand copies of any

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such further affidavits. Every party to the proceedings shall supply to any other party, on
demand, copies of the affidavits which he proposes to use at the hearing.

4.1.5 Applicant to have Right to begin

Order 53, Rule 5 provides that on the hearing of any such motion as aforesaid, the
applicant shall have the right to begin.

4.1.6 Right to be Heard in Opposition

Order 53, Rule 6 provides that on the hearing of any such motion as aforesaid, any person
who desires to be heard in opposition to the motion and appears to the High Court to be a
proper person to be heard shall be heard, notwithstanding that he has not been served with
the notice or summons, and shall be liable to costs in the discretion of the Court if the
order should be made.

4.1.7 Provisions as to orders of Certiorari for the purpose of quashing Proceedings

Order 53, Rule 7 provides that in the case of an application for an order of certiorari to
remove any proceedings for the purpose of their being quashed, the applicant shall not
question the validity of any order, warrant, commitment, conviction, inquisition or record,
unless before the hearing of the motion he has lodged a copy thereof verified by affidavit
with the Registrar, or accounts for his failure to do so to the satisfaction of the High Court.
Where an order of certiorari is made in any such case as aforesaid, the order shall direct
that the proceedings shall be quashed forthwith on their removal into the High Court.

4.1.8 Right of Appeal

Section 8(5) of the Law Reform Act explicitly bestows upon any person aggrieved by the
decision or order of the High Court a right of appeal. This appeal lies from the refusal of
leave and from the grant or refusal for the substantive application.

See the below Illustration

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5. ILLUSTRATIONS:
REPUBLIC OF KENYA
IN THE MAGISTRATE’S COURT AT NAIROBI
MILIMANI LAW COURTS
CIVIL SUIT NO. ……… OF 2012
BETWEEN
KIRIGE MUKURWE ……………………………………………………...APPLICANT
VERSUS
KENYATTA UNIVERSITY ………………………………………….. 1ST RESPONDENT
HIGHER EDUCATION BOARD ……………………………………… 2ND RESPODENT
(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act,
Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)
CERTIFICATE OF URGENCY
I, RESHMA AKINYI, an Advocate of the High Court of Kenya practising as such in the Firm of RES IPSA &
COMPANY ADVOCATES who have the conduct of this matter on behalf of the Petitioner do hereby certify
that the application filed herewith is urgent and should be heard as soon as practicably possible for the following
reasons:
1. THAT the 1st Respondent, through one Amina Abdalla, the Chancellor, allegedly acting on behalf of the 2
nd Respondent has purported to expel the Applicant.
2. THAT the Applicant’s education has thus been terminated.
3. THAT the the Applicant’s termination should be revoked since he is a fourth year student waiting to sit for his
final exams
In the meantime the Applicant beseeches the Honourable Court to restrain the Respondent from further
expelling the student. The grant of the said orders is absolutely essential for the preservation of the rule of law
and the democratic constitutional order in Kenya.
DATED at NAIROBI this 26th day of May 201528
(Signature is very important)
RES IPSA & COMPANY ADVOCATE
ADVOCATES FOR THE PETITIONERS
(Signature is very important)
DRAWN AND FILED BY
RES IPSA & COMPANY ADVOCATE
QUEENSWAY HOUSE, 5TH FLOOR,
P.O. BOX 29871-00202.
NAIROBI.
TO BE SERVED UPON:
1. KENYATTA UNIVERSITY

28
The Date and Signature must be in all documents.

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KAREN VIEW ESTATE, KIAMBU COUNTY, KIAMBU.

2. HIGHER EDUCATION BOARD
DASH HEADQUARTERS, KENYATTA AVENUE ROAD
NAIROBI
APPLICATION FOR LEAVE – CERTIORARI AND MANDAMUS
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS APPLICATION NO. ……… 2017
MARTIN ADEDE ……………………………………………….. APPLICANT
VERSUS
ELECTORAL COMMISSION OF KENYA …….………………. RESPONDENT
CHAMBER SUMMONS29
(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act,
Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)
LET ALL PARTIES CONCERNED appear before this Honourable Court on the day of 2007 at 9 o’clock in
the forenoon or soon thereafter as Counsel for the Applicant may be heard for ORDERS:
1. THAT leave be granted to the Applicant to apply for Orders of Certiorari and Mandamus to quash the
decision of the Independent Electoral Boundaries Commission made on the 27th August 2017 declaring Uhuru
Kenyatta, the winner of the Presidential elections and to compel the Commission to make a decision that
adheres to the laid down procedures and protocol as established under the National Assemblies and Presidential
Elections Act and the Rules thereunder.
WHICH APPLICATION is made on the following grounds:
1. THAT, the Applicant is a registered voter both for parliamentary and presidential elections in Kenya, holding
an Electors card Number 179/72/1510525326, and participated in the presidential elections of 27th August 2017.
(Annexed and marked “A” is a copy of the Applicant’s Elector’s card).
2. THAT, the Respondent did make a concrete decision to announce the outcome of the Presidential elections
on the 27th August 2017.
3. THAT, the decision and announcement by the Respondent as made on the 27th August 2017 did not adhere to
the laid down legal procedures that the Respondent is bound to follow in declaring election results.
4. THAT, the Applicant through his Advocate issued to the Electoral Commission of Kenya, a demand notice
dated 28th August 2017, but the same has been ignored. (Annexed and marked “B” is a copy of the demand
notice)
DATED at Nairobi ………. day of ………. 2008.
SEEMA & CO. ADVOCATES
ADVOCATES FOR THE APPLICANT

29
Chamber summons: It must have four principle prayers: i) Ask the Court to certify the application as urgent;
ii)
Ask the Court to grant leave for the applicant to apply for judicial review orders i.e., certiorari; iii) Leave
granted to
operate as a stay i.e., for order of arrest; iv) Costs to be granted.

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DRAWN AND FILED BY:

SEEMA & CO. ADVOCATES
P.O. BOX 1892- 00200,
NAIROBI.
TO BE SERVED UPON:
THE ELECTORAL COMMISSION OF KENYA,
ANNIVERSARY TOWERS, P.O. BOX 12351-00100,
NAIROBI
NOTE: “if any be served does not appear at the time and place mentioned above such order will be made and
proceedings taken as the Court may think just and expedient.”

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
MISCELLANEOUS APPLICATION NO. ……… 2017
BETWEEN
MR. WATSON KINGORI AND MS. BRENDA YUSUF.......... APPLICANT
VERSES
ELECTORAL COMMISSION OF KENYA …….………………. RESPONDENT
STATUTORY STATEMENT
(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act,
Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)
NAMES AND DESRIPTION OF THE PARTIES
1. The Petitioners are:
a) MR. WATSON KINGORI, a male adult of sound mind residing and working for gain in Kajiado County,
Kenya. The Petitioner's address of service for purposes of this matter shall be C/o Res Ipsa & Company
Advocate, Queensway House, 5th Floor, Kaunda Street, P.O. BOX 29871-00202, Nairobi.
2. The Respondent is:
a) MS. WINNIE MUTALI, a female adult of sound mind residing and working for gain in Nairobi, Kenya. The
Respondent's address of service for purposes of this matter shall be Karen View Estate, Kajiado County, Kajiado.
RELIEFS SOUGHT
1. THAT this application be certified as urgent.
2. THAT leave be granted to the Petitioners to apply for an order of CERTIORARI to remove into this
Honourable Court and quash the decision of the RESPONDENT dated 24/05/2015 to have the Petitioners
wrongfully and unlawfully arrested and charged.
3. Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the
RESPONDENT from continuing from the proceedings.
4. The leave so granted do operate as a stay of continuation of proceedings.
5. The costs of this application be provided for.

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GROUNDS UPON WHICH RELIEFS ARE SOUGHT

1. THAT the 1st Respondent, through one Amina Abdalla, the Chancellor, allegedly acting on behalf of the 2nd
Respondent has purported to expel the Applicant.
2. THAT the Applicant’s education has thus been terminated.
3. THAT the the Applicant’s termination should be revoked since he is a fourth year student waiting to sit for his
final exams
Dated at Nairobi this ……… day of ……… 2015.
(Signature is very important)
RES IPSA & COMPANY ADVOCATE
ADVOCATES FOR THE PETITIONERS
(Signature is very important)
DRAWN AND FILED BY
RES IPSA & COMPANY ADVOCATE
QUEENSWAY HOUSE, 5TH FLOOR,
P.O. BOX 29871-00202,
NAIROBI.
TO BE SERVED UPON:
ELECTORAL COMMISSION OF KENYA
KAREN VIEW ESTATE, KIAMBU COUNTY,
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
MISCELLANEOUS APPLICATION NO. ……… 2017
BETWEEN
REPUBLIC…………………………………………………………........... APPLICANT
VERSES
ELECTORAL COMMISSION OF KENYA ……..…….………………. RESPONDENT
(EX-PARTE MR. WATSON KINGORI AND MS. BRENDA YUSUF)
NOTICE OF MOTION
(Pursuant to Articles 23(3)(f) and 47 of the Constitution of Kenya, 2010, Section 8 and 9 of the Law Reform Act,
Cap 26; and the Fair Administrative Act, 2015 and Order 53 of the Civil Procedure Rules, 2010)
TAKE NOTICE that pursuant to leave granted by this Honourable Court on ………. day of ………. 2015, this
Honourable Court will be moved on the …….. day of …….. 2015 at 9.00 O'clock in the forenoon or as soon
thereafter by the Applicant for ORDERS:
1. THAT this application be certified as urgent.
2. THAT leave be granted to the Petitioners to apply for an order of CERTIORARI to remove into this
Honourable Court and quash the decision of the RESPONDENT dated 24/05/2015 to have the Petitioners
wrongfully and unlawfully arrested and charged.
3. Leave be granted to the Petitioners to apply for an order of PROHIBITION to forbid the

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RESPONDENT from continuing from the proceedings.

4. The leave so granted do operate as a stay of continuation of proceedings.
5. The costs of this application be provided for.
WHICH APPLICATION is based upon the grounds set out in the Statutory Statement and the Verifying
Affidavit of MR. WATSON KINGORI sworn on ……… accompanying the application for leave
dated ……… and on such other grounds as may be adduced at the hearing hereof.
Dated at Nairobi this ……… day of ……… 2015.
(Signature is very important)
RES IPSA & COMPANY ADVOCATE
ADVOCATES FOR THE PETITIONERS
(Signature is very important)
DRAWN AND FILED BY
RES IPSA & COMPANY ADVOCATE
QUEENSWAY HOUSE, 5TH FLOOR,
P.O. BOX 29871-00202,
NAIROBI.
TO BE SERVED UPON:
ELECTORAL COMMISSION OF KENYA
KAREN VIEW ESTATE, KIAMBU COUNTY, KIAMBU

NOTE: If any party served does not appear at the time and place above mentioned, such orders will be made
and proceedings taken as the Court may think just and expedient.

=END=

DR. AGATA BENARD, KENYATTA UNIVERSITY, SCHOOL OF LAW, PARKLANDS CAMPUS, NAIROBI