In Kenya, the primary methods of challenging court orders include lodging of appeals to a court of a higher rank or applying for review of the impugned decision in the court that issued it. Ideally, review entails requesting the court that issued an order to reconsider its decision while appeals request a court to set aside the decision of a lower court, either in its entirety or partly.

Appeals

The procedure of lodging appeals is covered under Part 8 of the Civil procedure Act and Order 42 of the Civil procedure Rules, 2010. Appeals from decisions of subordinate courts including Small Claims courts, Magistrates courts and Kadhi’s courts are usually lodged at the High Court within 30 days from the date of the decree or order appealed against. Appeals from the High Court are lodged in the Court of Appeal while those from the Court of Appeal are lodged in the Supreme Court. It is important to note that appeals that can be lodged to the Supreme Court are codified under the Constitution of Kenya, 2010 and statute and are therefore, limited.

Key considerations

• A consent decree is not appealable.
• First appeals can lie on both points of fact and law while second and subsequent appeals can only lie on points of law.
• Appeals from the Small Claims court are usually lodged at the High Court and the decision is final.
• Parties are usually required to deposit security for performance for money decrees.
• There are appeals which lie as of right while there are other appeals that can only be lodged with leave of court.
• Paupers cannot lodge appeals unless with leave of court.
• It is prudent to file an application for stay of execution of the decree or order appealed against.

Review

Review is provided for under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010. It is important to note that the law bars parties from filing an application for review where an appeal has been preferred.

Grounds for review

An application for review can be made in the following instances:

• Where the applicant discovers new and important evidence which was not within his knowledge at the time the decree was passed.
• On account of some mistake or error apparent on the face of the record.
• The existence of a clerical or arithmetical mistake or error apparent on the face of the decree.

Ideally, applications for review are best made where the applicant genuinely believes that the judge made an apparent error in his decision.

Conclusion

The law provides legal avenues to challenge court decisions and this ensures that justice is served to all. Each case is unique, and the path to challenge a decree, order or judgment may vary depending on specific circumstances and legal standards.

Please contact us at info@cfllegal.com should you require further information.