Ngasi v Gor Construction & Hardware Ltd (Environment and Land Appeal 22 of 2019) [2024] KEELC 4821 (KLR)
The bottom line
#A Kenyan court cannot be blamed for refusing relief—like a refund—when no party ever asked for it; plead all your remedies or lose them.
What this practically means
#Executive summary
#Key legal issues
#Whether the failure to award the refund of Kshs. 200,000/- amounted to an error apparent on the face of the record
It did not; an error apparent on the face of the record must be self-evident, and a court cannot be faulted for not granting relief no party sought before it
Review lies only on the grounds in Order 45 Rule 1: discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason. The Respondent did not seek refund of the Kshs. 200,000/- in the lower court, nor argue it in the alternative in the appeal. The judgment complained of therefore contained no self-evident error; at most the Respondent's remedy was an appeal or a fresh suit.
Scope of the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45
The review power is confined to the enumerated grounds and cannot be used to correct an erroneous decision or re-argue matters decided
Citing authority, the court reiterated that a point outside the purview of Order 45 Rule 1 is not a ground for review; erroneous conclusions of law or evidence are grounds of appeal, not review. An error apparent on the face of the record must be prima facie visible and require no elaborate argument, and where another view is possible there is no error apparent.
Legal principles established
#- A point which is a good ground of appeal, such as an erroneous view of law or evidence, is not a ground for review
- A court cannot be said to have erred in failing to award relief that was never sought by a party in the lower court or on appeal
Court orders
#- 1.The Notice of Motion dated 7th November 2022 is dismissed
- 2.Costs of the application to the Appellant
- On appeal from
- Chief Magistrate's Court at Kisumu
- Kisumu CMCC No. 85 of 2018
- Jurisdiction invoked
- Sections 3A and 80 of the Civil Procedure Act and Order 45 Rules 1 and 2, Order 12 Rule 7 and Order 22 Rule 22 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngasi v Gor Construction & Hardware Ltd (Environment and Land Appeal 22 of 2019) [2024] KEELC 4821 (KLR)", Case Analysis (2024). Kisumu HCCA No. 115 of 2019 (formerly Kisumu CMCC No. 85 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4821/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.