The Official Receiver and Liquidator v Freight Forwarders Kenya Limited
The bottom line
#Kenya's Court of Appeal confirmed that a court order can be reviewed for 'any other sufficient reason' — including inability to comply — not just for errors or new evidence.
What this practically means
#Executive summary
#Key legal issues
#Scope of 'any other sufficient reason' in Order 44 rule 1(1) of the Civil Procedure Rules
The phrase need not be ejusdem generis with, or analogous to, the first two grounds (discovery of new and important matter, or mistake/error apparent on the face of the record). The High Court's contrary restriction was contrary to the binding decision in Wangechi Kimita v Wakibiru.
The Court of Appeal had already settled the point in Wangechi Kimita v Wakibiru, where Nyarangi JA, with Hancox and Kneller JJA concurring, held that section 80 of the Civil Procedure Act confers an unfettered right to apply for review, so the third head is not confined to the kind of reasons in the two preceding heads, which do not themselves form a genus. Shah J was bound by that decision and erred in restricting the phrase.
Whether inability to comply with a court order constitutes 'any other sufficient reason' for review
Yes. The Official Receiver's inability to comply with the payment order, because the liquidation funds had been deposited with Jimba Credit Finance which became insolvent, exposing him to contempt, constituted 'any other sufficient reason' warranting review.
The appellant had deposited the realised liquidation funds with Jimba Credit Corporation, which became insolvent, and Consolidated Bank of Kenya denied inheriting the sum. The Official Receiver was therefore at risk of contempt for non-compliance with an order he could not satisfy. That situation fell within the third head of Order 44 r.1(1) as interpreted in Wangechi Kimita, and the judge erred in refusing to consider it.
Whether a review application that could have been pursued by appeal is incompetent
No. The judge's reason that the application 'really amounts to an appeal' was insupportable, because the appellant had filed no notice of appeal or appeal against the order of 28th April 1994, and Order 44 rule 2 expressly permits a party not appealing to apply for review.
Section 80 of the Civil Procedure Act gives a wide right to apply for review to any person aggrieved by a decree or order, whether or not an appeal is allowed, provided no appeal has been preferred. Order 44 r.1(1) repeats these criteria and adds the three grounds. Since the appellant had not appealed the 28th April 1994 order by the time of the review application, the judge's characterisation of the application as an appeal was wrong.
Legal principles established
#- The third ground for review in Order 44 rule 1(1), 'for any other sufficient reason', is not confined to reasons ejusdem generis with or analogous to the discovery of new and important matter or mistake or error apparent on the face of the record; section 80 of the Civil Procedure Act confers an unfettered right to apply for review.
- A party aggrieved by a decree or order who has not appealed against it may nonetheless apply for review of that decree or order; a review application does not become an appeal merely because the applicant could have appealed.
Court orders
#- 1.Appeal allowed
- 2.The Ruling of the superior court of 23rd June 1994 refusing review set aside
- 3.The order of the superior court of 28th April 1994 set aside
- 4.The respondent's (appellant's) Chamber Summons dated 23rd July 1993 to be heard afresh by the superior court
- 5.Costs of the appeal and of the review application in the High Court awarded to the appellant
- On appeal from
- High Court of Kenya at Nairobi
- Winding Up Cause No. 6 of 1981
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (ruling in Winding Up Cause No. 6 of 1981); appeal against refusal of review under Order 44 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Official Receiver and Liquidator v Freight Forwarders Kenya Limited", Case Analysis (2000). Civil Appeal 235 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/19/eng@2000-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.