Prof. Peter Anyang’ Nyong’o & Others v Hon. Attorney General
The bottom line
#Kenya's Court of Appeal ruled you can't use 'review' to reopen a decided case without solid proof of new evidence, and unexplained delay kills the application.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent established a basis for review under section 80 CPA and Order 45 CPR
No. The respondent neither proved the factual premise of alleged non-disclosure nor showed error apparent on the face of the record; conjecture cannot found review.
Section 80 confers review jurisdiction but Order 45 structures and limits it. The applicant had to establish the alleged non-disclosed facts, not speculate. The trial judge only found the respondent's argument 'plausible since there is evidence that previous payments may not have been disclosed'. Review cannot rest on what 'may' be the case; the burden of cogent proof lay on the respondent and was not discharged.
Whether the alleged prior payment was 'new and important matter or evidence'
No. The payment was the respondent's own, within its knowledge and documented in its custody, so it could not constitute discovery under Order 45.
Discovery under Order 45 is directed at matters which, despite due diligence, were not within the applicant's knowledge or could not be produced at the original litigation. The respondent had a full opportunity to place evidence of payment before the High Court and did oppose the motion on prior-settlement grounds; it could not rebrand known facts as newly discovered after an adverse ruling.
Whether the Discharge Voucher proved payment of USD 256,802.24
No. Inference cannot substitute proof; no documentary trail showed the 2012 payment covered the second certificate of costs.
It was common ground the respondent paid money in 2012; the question was whether that payment included the distinct USD 256,802.24 certificate from Taxation Reference No. 5 of 2010. The High Court had already found, on 24th March 2017, that there were two separate taxation causes and the payment related to the earlier one. No documentary evidence displaced that finding.
Whether the review application was brought without unreasonable delay or with a satisfactory explanation
No. There was inordinate, unexplained delay; the judge excused delay on an explanation that does not exist on the record.
The motion was filed over a year after the ruling of 24th March 2017 with no explanation in the supporting affidavit; counsel could not point to any explanation. The 'without unreasonable delay' requirement in Order 45 is not ornamental and serves finality and certainty; unexplained delay is fatal and disentitles an applicant to review.
Legal principles established
#- A party invoking review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules bears the burden of demonstrating, with cogent material, that the statutory threshold is met; review jurisdiction cannot be exercised on speculation that something 'may' be the case.
- Matter already within an applicant's knowledge at the time of the original litigation cannot qualify as 'discovery of new and important matter or evidence' under Order 45.
- Inordinate delay in an application for review must be satisfactorily explained on the record; the discretion to review only arises once the statutory preconditions, including absence of unreasonable delay, are met.
- An appellate court interferes with the exercise of judicial discretion only where the trial court misdirected itself in law, misapprehended the facts, took into account irrelevant considerations, failed to consider relevant ones, or where the decision is plainly wrong.
Court orders
#- 1.The ruling and orders of the High Court (Sergon, J.) delivered on 16th November, 2018 are set aside
- 2.In substitution, the respondent's notice of motion dated 29th May, 2018 is dismissed
- 3.The ruling and orders of the High Court delivered on 24th March, 2017 remain in force
- 4.The appellants shall have the costs of this appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Application No. 24 of 2016 (ruling of 16th November 2018)
- Jurisdiction invoked
- First appeal / appellate review of the High Court's exercise of judicial discretion under the Court of Appeal's appellate jurisdiction (statute not specified in the judgment)
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.
- Yaa Baya & 2 others v Kazungu Baya Kitunga & 8 others[2026] KECA 643 (KLR)25 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Prof. Peter Anyang’ Nyong’o & Others v Hon. Attorney General", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/200/eng@2026-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.