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Court of AppealDismissedNot stated in the judgment text· [2024] KECA 239 (KLR)

Rafiki Microfinance Bank Limited v Youth Enterprise Development Fund Board (Civil Appeal E222 of 2022) [2024] KECA 239 (KLR)

Court of Appeal
8 March 2024
ASAsike-MakhandiaPNP. NyamweyaJMJ Mativo
4,097 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that once you apply to review a judgment, you cannot then appeal that judgment itself — only the refusal of review.

What this practically means

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Executive summary

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This is a single unanimous judgment of the Court of Appeal (Asike-Makhandia, Nyamweya and Mativo, JJA) delivered at Nairobi on 8th March 2024, dismissing an appeal arising from a suit on a Deed of Guarantee of Ksh 100,000,000. The High Court (Tuiyott, J) had entered judgment as prayed in the plaint for the respondent; a subsequent application for review was dismissed by Majanja, J. The appellant appealed against both the judgment and decree and the ruling dismissing review. The respondent objected that the only competent appeal was against the ruling. The Court framed a single jurisdictional issue: whether it could entertain an appeal against both decisions delivered at different times in the same suit. It held that under section 80 of the Civil Procedure Act and Order 45 rule 1, review is available only to a party not appealing; a party cannot exercise both rights concurrently or sequentially. Having sought review, the appellant could appeal only against the order refusing review; the appeal against the judgment and decree was also filed a year out of time under rules 77 and 84 of the Court of Appeal Rules and was incompetent. Pursuing appeal after failed review would be an abuse of process and contrary to the overriding objective. On the merits of the review appeal, the Court applied the Supreme Court's review principles in Parliamentary Service Commission v Wambora and found no misdirection: the alleged new evidence was always in the appellant's possession, there was no due diligence, and the evidence was immaterial because it could not cure the admitted breach. Review, the Court held, is not a second bite at the same cherry. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether a party who has applied for review of a judgment and decree can thereafter appeal against that judgment and decree

Holding

No. Once a party elects the review remedy and it is determined, it cannot appeal against the underlying decision; the only available appeal is against the order refusing review. The appeal against the judgment and decree was incompetent, additionally being filed a year out of time.

Reasoning

The Court reasoned that Order 45 rule 1 of the Civil Procedure Rules and section 80 of the Civil Procedure Act make review available only to a party not appealing or one with no right of appeal. Allowing a party to pursue both routes would open multiple fronts of litigation, contravene sections 1A and 1B of the Civil Procedure Act, and amount to an abuse of process. The Court relied on its prior decision in The Chairman Board of Governors Highway Secondary School v William Mmosi Moi and Orero v Seko.

p. 5
02

Whether the trial court properly exercised its discretion in dismissing the application for review based on newly discovered evidence

Holding

Yes. The documents said to be newly discovered were in the appellant's possession between 2016 and 2017 during the pendency and hearing of the suit, so due diligence would have produced them; further, the evidence could not have cured the breach of the Deed of Guarantee and was therefore immaterial.

Reasoning

Applying the review principles laid down by the Supreme Court in Parliamentary Service Commission v Martin Nyaga Wambora, the Court held that a review applicant must show the court erred or acted whimsically in exercising discretion. Here the evidence was always available to the appellant, so there was no due diligence as required by Rose Kaisa v Angelo Mpanju, and the evidence was irrelevant since it could not cure the admitted breach. The application was a ploy to re-litigate the suit through the back door.

p. 7

Legal principles established

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  • A party cannot exercise both the right of appeal and the remedy of review over the same decision at the same time; where a party has unsuccessfully sought review of a decision, it cannot thereafter appeal against that decision, but only against the order refusing review.
  • Applying for review with the intention of opening fresh fronts of litigation on appeal amounts to an abuse of the process of the court.
  • Review is not an opportunity for an applicant to re-litigate its case.

Court orders

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  1. 1.The appeal against the judgment and decree of the High Court was declared incompetent (the only proper appeal being against the ruling and order of Majanja, J)
  2. 2.The appeal against the ruling and order dismissing the application for review was considered and found to lack merit
  3. 3.The appeal was dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 77
  • Court of Appeal Rulesrule 84
  • Civil Procedure RulesOrder 45 rule 1
  • Civil Procedure RulesOrder 45(3)
  • Civil Procedure Actsection 80
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsections 1A and 1B

Cases cited (10)

  • Choitram v Nazari
    [1984] KLR 327
  • Gupta v Continental Builders Ltd
    (1976-80) 1 KLR 809
  • Kisumu Civil Appeal nos 60 and 62 of 2017 - Otieno, Rogot & Co. Advocates v National Bank of Kenya Ltd
  • Rose Kaisa v Angelo Mpanju
    [2009] eKLR
  • Selle & Another v Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Peters v Sunday Post Limited
    [1958] EA 424
  • The Chairman Board of Governors Highway Secondary School v William Mmosi Moi
    Civil Application no 277 of 2005
  • Orero v Seko
    [1984] KLR 238
  • Parliamentary Service Commission v Martin Nyaga Wambora & Others
    [2018] eKLR
  • Mbogo and Another v Shah
On appeal from
High Court of Kenya
Not stated in the judgment text
Jurisdiction invoked
Appeal to the Court of Appeal under the Court of Appeal Rules (rules 77 and 84 referenced on timing); appeal against ruling and order dismissing an application for review under Order 45 of the Civil Procedure Rules and section 80 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rafiki Microfinance Bank Limited v Youth Enterprise Development Fund Board (Civil Appeal E222 of 2022) [2024] KECA 239 (KLR)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/239/eng@2024-03-08

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