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Court of AppealDismissedNot stated in the judgment

Gwaro v Kenya Revenue Authority (Civil Appeal E257 of 2023) [2025] KECA 1120 (KLR)

Court of Appeal of Kenya
20 June 2025
3,170 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a former KRA employee's appeal, confirming that you must choose between appealing a judgment or seeking its review — not both.

What this practically means

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Executive summary

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This is a first appeal from the ruling of Monica Mbaru, J delivered on 31st May 2021 in Nairobi ELRC Cause No. E298 of 2020, dismissing the appellant's application for review of the judgment of 29th March 2021 which had dismissed his claim for unfair termination by the Kenya Revenue Authority. The appellant had been summarily dismissed on grounds of negligence and gross misconduct relating to the alleged diversion of 15 transit motor vehicles. His review application, brought under Order 45 of the Civil Procedure Rules and Rule 33 of the ELRC (Procedure) Rules, sought to introduce documents (EG1) allegedly withheld by the investigating officer. At the hearing, the appellant's counsel conceded that the appeal lay strictly against the ruling declining review, not the underlying judgment. The respondent argued that the ingredients for review were not met, that dissatisfaction with findings is a ground of appeal not review, and that the appeal was an abuse of process because the appellant, in a prior extension-of-time application (Civil Application No. 412 of 2022, dismissed 14th December 2022), had failed to disclose the review application. The Court of Appeal affirmed the decision below. It held that review grounds are narrower than appeal grounds, that the documents were within the appellant's knowledge and discoverable, and that no error apparent on the face of the record was demonstrated. It further found the appellant's overlapping, undisclosed challenges to the same judgment constituted a fatal abuse of process. The appeal was dismissed in its entirety with costs to the respondent; a strike-out application based on alleged late filing of the notice of appeal was declined for want of evidence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in dismissing the appellant's application for review of the judgment of 29th March 2021
  2. 2.Whether the appeal was procedurally tenable, having regard to the appellant's prior and overlapping attempts to challenge the original judgment
  3. 3.Whether the notice of appeal was filed out of time such that the appeal should be struck out

Key legal issues

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01

Abuse of court process through overlapping challenges to the same decision

Holding

The appellant's non-disclosure of the review application in a prior extension-of-time application, combined with his concession that one cannot appeal a judgment after seeking its review, rendered the appeal procedurally untenable and abusive

Reasoning

The appellant pursued an extension of time to appeal the 29th March 2021 judgment (Civil Application No. 412 of 2022, dismissed 14th December 2022) without disclosing that he had also sought review of the same judgment in the Employment Court. The Court found this constituted multiple, overlapping and inadequately disclosed attempts to challenge the same decision, undermining the integrity of the judicial process. This made the appeal fatally flawed regardless of its merits.

p. 4
02

Whether the trial court erred in dismissing the review application

Holding

The learned Judge's exercise of discretion could not be disturbed: the appellant failed to establish discovery of new and important matter or an error apparent on the face of the record

Reasoning

The Court reiterated the narrow grounds for review under Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and Rule 33(1) of the ELRC (Procedure) Rules, 2016. The documents the appellant sought to introduce (marked EG1) were in his knowledge during the disciplinary process and could have been obtained earlier, including through discovery. Review is not a vehicle for re-litigating a case out of disappointment with the outcome, and dissatisfaction with findings is a ground of appeal, not review.

p. 5
03

Timeliness of the notice of appeal

Holding

The appeal was not struck out for lateness because the respondent produced no evidence to disprove the appellant's claim that the notice of appeal was dated 14th June 2021

Reasoning

The respondent contended the notice of appeal was dated 14th June 2022, over a year after the 31st May 2021 ruling, and urged striking out under Rule 85. The appellant clarified the notice was dated 14th June 2021 and that a certificate of delay was obtained because proceedings were not ready. The Court found no conclusive evidence to the contrary and declined to strike out the appeal on that basis.

p. 6

Legal principles established

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  • An appellate court may only interfere with the exercise of discretion by a lower court where the decision was clearly wrong, because of misdirection, acting on wrong matters, or failure to consider relevant matters
  • Documents known to a party and discoverable during the original proceedings are not 'new and important matter' for review under Order 45
  • A party aggrieved by a judgment must elect between appeal and review; a ground that is merely a good ground of appeal is not a ground for review

Court orders

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  1. 1.Dismissal of the appeal in its entirety
  2. 2.Costs of the appeal to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Nairobi
ELRC Cause No. E298 of 2020
Jurisdiction invoked
First appeal from the Employment and Labour Relations Court

Relief refused

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Setting aside the ruling dismissing the application for review

The appellant did not establish error apparent on the face of the record or discovery of new and important matter; the documents were within his knowledge during the disciplinary process

Striking out of the appeal on grounds of late filing of the notice of appeal

No evidence placed before the Court to disprove the appellant's assertion that the notice of appeal was dated 14th June 2021

p. 6

Costs

Costs of the appeal awarded to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Therefore, the appeal lacks procedural tenability and substantive merit.
p. 7Conclusion on procedural tenability and merits
Accordingly, we dismiss the appeal in its entirety, with costs to the respondent.
p. 7Final orders - disposition
The appellant has not sufficiently demonstrated an error apparent on the face of the record or truly new and important evidence that could not have been presented earlier with due diligence.
Review principles
This Court may only interfere with the exercise of such discretion when, in the words of the predecessor of this Court in Mbogo and Another vs. Shah [1968] EA 93, it is satisfied that the decision of the lower court was clearly wrong
p. 4Interference with judicial discretion on appeal
A point which may be a good ground of appeal may not be a good ground for an application for review, and an erroneous view of evidence or of law is not a ground for review though it may be a good ground for appeal
p. 6Distinction between appeal and review

Issues in the judgment

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minor

The memorandum of appeal is stated to relate to both the judgment and the ruling, while the concession narrowed the appeal strictly to the ruling; the judgment does not reconcile this discrepancy expressly in its final analysis.

minor

The reproduced text of Rule 33(1) contains typographical anomalies, with lettering restarting ('b.' repeated) and the phrase 'if the judgment or ruling requires clarification' inserted before 'for any other sufficient reason'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gwaro v Kenya Revenue Authority (Civil Appeal E257 of 2023) [2025] KECA 1120 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1120/eng@2025-06-20

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