The Grounds for Review under Order 45
Rule 1 of the Kenyan Civil Procedure Rules
Are Not Exhaustive
Rajab Mwachia
Legal Counsel/Legislative Drafter at Kenya Law Reform Commission
12 articles Follow
February 19, 2020
1. Section 80 of the Civil Procedure Act Cap 21 provides as follows:-
“Any person who considers himself aggrieved—
a) by a decree or order from which an appeal is allowed by this Act, but from which no
appeal has been preferred; or
b) by a decree or order from which no appeal is allowed by this Act,
may apply for a review of judgment to the court which passed the decree or made
the order, and the court may make such order thereon as it thinks fit.”
2. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows:-
“1. (1) Any person considering himself aggrieved—
a) by a decree or order from which an appeal is allowed, but from which no appeal has been
preferred; or
b) by a decree or order from which no appeal is hereby allowed, and who from the discovery
of new and important matter or evidence which, after the exercise of due diligence, was not
within his knowledge or could not be produced by him at the time when the decree was passed
or the order made, or on account of some mistake or error apparent on the face of the record,
or for any other sufficient reason, desires to obtain a review of the decree or order, may apply
for a review of judgment to the court which passed the decree or made the order without
unreasonable delay.”
3. In Republic v Public Procurement Administrative Review Board & 2 others [2018]
eKLR it was held:-
“12. Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the
grounds for review. The rules lay down the jurisdiction and scope of review limiting it to
the following grounds; (a) discovery of new and important matter or evidence which after the
exercise of due diligence, was not within the knowledge of the applicant or could not be
produced by him at the time when the decree was passed or the order made or; (b) on account
of some mistake or error apparent on the face of the record, or (c) for any other sufficient
reason and whatever the ground there is a requirement that the application has to be made
without un reasonable delay.”
4. In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR the Court of Appeal held:-
“Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court
discretionary power to allow review on the three limps therein stated or “for any sufficient
reason.”… As repeatedly pointed out in various decisions of this Court, the words, “for any
sufficient reason” must be viewed in the context firstly of Section 80 of the Civil Procedure
Act, Cap 21, which confers an unfettered right to apply for review and secondly on the current
jurisprudential thinking that the words need not be analogous with the other grounds
specified in the order.”
5. The Court of Appeal in the aforementioned Pancras T Swai’s case also cited with approval
the case of Sarder Mohamed v. Charan Singh Nand Sing and Another (1959) EA 793 where
the High Court held that Section 80 of the Civil Procedure Act conferred an unfettered discretion
in the Court to make such order as it thinks fit on review and that the omission of any qualifying
words in the Section was deliberate.
6. In Shanzu Investments Limited v. Commissioner for Lands (Civil Appeal No. 100 of
1993) the Court of appeal upheld its earlier decision in Wangechi Kimata & Another Vs.
Charan Singh (C.A. No. 80 of 1985) (unreported) where it was held:-
“Any other sufficient reason need not be analogous with the other grounds set out in the rule
because such restriction would be a clog on the unfettered right given to the Court by Section
80 of the Civil Procedure Act; and that the other grounds set out in the rule did not in
themselves form a genus or class of things which the third general head could be said to be
analogous.”
