Associated Insurance Brokers v Kenindia Assurance Co Ltd (Civil Appeal 94 of 2013) [2018] KECA 809 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if a court ruling is merely wrong, you must appeal it — you cannot use the review process to have it reversed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the payment of the decretal sum by the appellant compromised the appeal in the High Court
- 2.Whether the ruling of Sitati, J that the appeal had been compromised contained an error apparent on the face of the record capable of review
- 3.Whether Onyancha, J, having jurisdiction under Order 45 rule 2(2) of the Civil Procedure Rules to hear the review after Sitati, J's transfer, could rehear and reverse her substantive determination
Key legal issues
#Scope of review for error apparent on the face of the record
A decision based on findings of fact and interpretation of the law is not reviewable, even if arguably wrong; only a self-evident error requiring no elaborate argument qualifies.
Order 45 rule 1(1) of the Civil Procedure Rules permits review on account of mistake or error apparent on the face of the record. Citing National Bank of Kenya Ltd v Ndungu Njau and Nyamogo & Nyamogo Advocates v Kogo, the court held that where a court considered the facts and law and reached a possible conclusion, the decision is merely erroneous at most and can only be challenged on appeal. Sitati, J's determination that the appeal had been compromised was such a judicial determination.
Jurisdiction of a different judge to hear review after the original judge's transfer
Onyancha, J had jurisdiction under Order 45 rule 2(2) to hear the review application, but that jurisdiction did not extend to rehearing and reversing Sitati, J's substantive determination.
The fact that Sitati, J was no longer attached to the High Court in Nairobi allowed any other judge to hear the review application, but the mandate of that judge was confined to determining whether there was an error apparent on the face of the record on which no other opinion was possible. It was not a licence to sit on appeal over the original ruling.
Legal principles established
#- An error apparent on the face of the record must be self-evident and not require elaborate argument; a merely erroneous or arguable decision is a ground for appeal, not for review.
- A judicial determination reached after ascertainment of facts from evidence and their interpretation is not reviewable but may only be challenged on appeal.
- A judge seized of a review application after the original judge's transfer may review the proceedings only to determine whether there is a self-evident error apparent on the face of the record; he cannot rehear and reverse the original determination merely because he would have taken a different view.
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the lead judgment tracing the history of the dispute from summary judgment in the Chief Magistrate's Court, through the ruling of Sitati, J that the appeal had been compromised, to the dismissal of the review application by Onyancha, J. She held that a considered decision based on findings of fact and law, even if arguably erroneous, is not an error apparent on the face of the record and is reviewable only on appeal.
For the above reasons, I find that Onyancha J was right in rejecting the appellant’s motion for review. Accordingly, I find no substance in this appeal and would therefore dismiss it with costs.p. 5
Wrote the judgment
Concurred with the judgment of Okwengu, JA in draft, adding that the decision of Sitati, J was a judicial determination based on ascertainment and interpretation of facts and therefore not reviewable but challengeable only on appeal.
Thus, the decision of the learned Judge was a judicial determination of the dispute which is not reviewable. It could only be questioned in an appeal.p. 2
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Court of Appeal Rules (judgment delivered under rule 32(3) of the Court of Appeal Rules)
Relief refused
#Setting aside the ruling of Onyancha, J dismissing the application for review of the ruling of Sitati, J
The ruling of Sitati, J was a judicial determination based on findings of fact and law; any error in it was not self-evident and could only be challenged on appeal, not by review.
Costs
The appeal is dismissed with costs to the respondent.
Quotable passages
#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, the judgment of the court is that the appeal is dismissed with costs.
For the above reasons, I find that Onyancha J was right in rejecting the appellant’s motion for review. Accordingly, I find no substance in this appeal and would therefore dismiss it with costs.
There is a real distinction between a mere erroneous decision and an error apparent on the face of the record.
Thus, the decision of the learned Judge was a judicial determination of the dispute which is not reviewable. It could only be questioned in an appeal.
Such an error is distinguishable from an erroneous considered decision anchored on a wrong conclusion on law or evidence that may be subject of an appeal.
Issues in the judgment
#The judgment does not state the appeal number in the Court of Appeal, and the coram is incomplete because the third judge, GBM Kariuki, JA, had ceased to hold office before delivery of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sairowua v Olorgeso & 5 others (Environment and Land Case E017 of 2021) [2025] KEELC 7815 (KLR)[2025] KEELC 7815 (KLR)12 Nov 2025applied
- Koinange & 2 others v Mitithiru Company Limited (Environment and Land Case E333 of 2022) [2025] KEELC 7229 (KLR)[2025] KEELC 7229 (KLR)23 Oct 2025applied
- Teja & 5 others v Munga & 12 others (Environment & Land Case 62 & 109 of 2013 (Consolidated)) [2025] KEELC 334 (KLR)[2025] KEELC 334 (KLR)29 Jan 2025applied
Cite this brief
#Cite this brief
Caselaw, "Associated Insurance Brokers v Kenindia Assurance Co Ltd (Civil Appeal 94 of 2013) [2018] KECA 809 (KLR)", Case Analysis (2018). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/809/eng@2018-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.