Jason Ondabu t/a Ondabu & Company Advocates & 2 others v Shop One Hundred Limited [2020] KECA 134 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot use review to introduce documents you could have produced earlier in a contempt case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Judge properly exercised her discretion in dismissing the application for review
The Judge properly exercised her discretion; no misdirection, no consideration of irrelevant matters, and no failure to consider relevant matters was shown
The Court of Appeal can interfere with discretionary decisions only on established limited grounds: misdirection in law, misapprehension of facts, taking into account irrelevant considerations, failing to take relevant ones into account, or a plainly wrong decision. None was established. The Judge correctly found no error apparent on the face of the record and no sufficient reason for review, and the Court agreed with her reasoning on the unexplained failure to produce the documents at the contempt hearing.
Whether the letter dated 24th July 2012 and the court receipt constituted new and important matter justifying review
They did not; the documents existed when the contempt application was heard and no explanation was given why they could not then have been produced, showing remissness
Order 45 grounds include discovery of new and important matter which, after due diligence, was not within the applicant's knowledge or could not be produced when the order was made. The letter and receipt predated the contempt hearing; the Judge correctly observed they were not exhibited then and no explanation was offered. Review cannot be used to plug gaps in a weak case, per Rose Kaiza and D.J. Lowe & Company Ltd.
Whether the Judge based her decision on extraneous matters, vitiating the ruling
No; the authenticity of the letter and the discrepancy in dates were relevant considerations, not extraneous matters
The documents were submitted by the 1st appellant himself at the review stage, so the Judge was duty-bound to interrogate them. The absence of a court stamp and the discrepancy between the letter's date and the receipt's date bore directly on why the documents surfaced only at review without explanation, and were legitimate considerations rather than extraneous material.
Legal principles established
#- An appellate court will not interfere with the exercise of judicial discretion by a lower court unless it is satisfied the decision is clearly wrong - through misdirection, acting on wrong matters, failing to consider relevant matters, or a plainly wrong decision
- An application for review is not an opportunity for a party to plug holes in its case by procuring fresh evidence; a party relying on discovered evidence must show no remissness in adducing all possible evidence at the hearing
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi H.C.C. Appeal No. 398 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Court of Appeal's appellate jurisdiction (Appeal from Ruling and Order of the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Smata General Supplies Limited v Tennyson Jonathan Claude & another[2025] KEHC 135 (KLR)16 Jan 2025applied
Cite this brief
#Cite this brief
Caselaw, "Jason Ondabu t/a Ondabu & Company Advocates & 2 others v Shop One Hundred Limited [2020] KECA 134 (KLR)", Case Analysis (2020). Civil Appeal No. 253 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/134/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.