Review

Review simply stated means to look once again. Under the Civil Procedure Act review is a judicial re-examination of
the same case by the same judge in certain circumstances. Under Order 45 of the Civil Procedure Rules a court has
power to review its own orders. The Section provides: -

“(45) (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 review of judgment to the court which passed the
decree or made the order without unreasonable delay.”

This legal position flows from Section 80 of the Civil Procedure Act which gives a Court power to review its own order
where an appeal has not been preferred against its order for sufficient cause.
The provisions relating to review constitute an exception to the general rule that once a judgment is signed and
pronounced by the court it becomes fantus official. That means it ceases to have any control over the matter or any
jurisdiction to alter it. A court has pronounced judgment; it no longer has any control over the matter. The matter can
only go to the appellate court or a court higher. It cannot change its mind about it. It no long has any control over it. The
power of review is an exception to this rule. For the power of review allow the same judge to look at his own judgment,
once again and correct it.
Who may apply for review?
First, any person aggrieved by the decree order may apply for review. Usually they will apply for the review of the
judgment where an appeal is allowed and where the appeal has not yet been filed. So if you want to apply for review
you should do it before you appeal.
Who is an aggrieved party? A person who has suffered such legal grievance or against whom a decision has been made
or a person who has been deprived of something or affected by the decision. In other words, a person who is not a party
to the decree or order cannot apply for review because such a decree will usually not be binding on such a person and
therefore cannot be said to be aggrieved within the meaning of Order 45 and section 80.
Nature and scope of the power of review
First, the power of review should not be confused with appellate power. Appellate power enables the appellate court to
correct all errors committed by the subordinate court.
In the case of review, the original court has the opportunity to correct their errors within certain limits. We all know that
it is an accepted principle that once a competent court pronounces a judgment, that judgment must be accepted and
implemented. The decree holder should therefore not be deprived of the fruits of that judgment, except in circumstances
such as this, which the power of review.
Also remember that review is not an appeal in disguise. Review enables the court to look at the judgment again on
specific grounds set up by statutes.
Grounds for applying for review
Review can only be allowed under certain circumstances. It is not in all cases that you are allowed to apply for review.
It is only in certain circumstances. The grounds are:
1. discovery of new and important matter of evidence
2. mistake or error apparent on the face of the record
3. any other sufficient reason.
However the courts are notoriously reluctant to review their judgments. In Sow Chandra Kanta And Another v. Sheik
Habib 1975 AIR 1500, 1975 SCC (4) 457, the petitioner had been denied special leave to appeal by the Supreme Court
and urged the Court to review that decision. In dismissing the review application, the Court stated thus:
“A review of a Judgment is a serious step and reluctant resort to it is proper only where a glaring omission or
patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different
counsel, of old and over-ruled arguments, a second trip over ineffectually covered ground or minor mistakes of
inconsequential import are obviously insufficient.”
In Northern India Caterers (India) v. Lt. Governor Of Delhi 1980 AIR 674, the Court had to decide whether it could
review its own decision based on the ground that the decision was based on an erroneous appreciation of facts. In
dismissing the review application, the Court remarked:
“It is well settled that a party is not entitled to seek a review of a Judgment delivered by this Court merely for
the purpose of a rehearing and a fresh decision of the case. The normal principle is that a Judgment pronounced
by the Court is final, and departure from that principle is justified only when circumstances of a substantial and
compelling character make it necessary to do so.”
The Court in Northern India Caterers identified the circumstances that would justify the exercise of review jurisdiction
as follows:
(a) Where the attention of the Court is not drawn to a material statutory provision during the original hearing,
the Court will review its Judgment.
(b) Where a manifest wrong has been done and it is necessary to pass an Order to do full and effective.
(c) Where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.
So to summarise, in exercise of its inherent powers, Court may, upon application by a party, or on its own motion,
review, any of its Judgments, Rulings or Orders, so as to meet the ends of justice. Such circumstances shall be limited
to situations where:
i. the Judgment, Ruling, or Order, is obtained, by fraud or deceit;
ii. the Judgment, Ruling, or Order, is a nullity, such as, when the Court itself was not competent;
iii. the Court was misled into giving Judgment, Ruling or Order, under a mistaken belief that the parties had
consented thereto;
iv. the Judgment or Ruling, was rendered, on the basis of a repealed law, or as a result of, a deliberately
concealed statutory provision.

Appeal;
Every decree may be appealed from unless barred by some law. However an appeal does not automatically lie against
every order. Order 42 Rule 1 gives a long list of orders from which an appeal lies from as of right.
If you want to appeal on an order that is not on the list, you have to seek leave of court. When you have a judgment you
extract a decree. Orders are gotten from small interim applications. You can appeal against an order.
Amendments of pleadings, appeals lie as of right. Judgement in default is appealable.
Application for leave to Appeal should be made in the first instance to the court which made the order that is being
sought to be appealed against. It should be made by Chamber Summons or orally in court at the time of making the
order.
HOW THE COURT DEALS WITH THE APPEAL
Section 79 of the Civil Procedure Rules – The court has power to summarily dismiss an Appeal. The Court has the
opportunity in the first instance to peruse the record of appeal and if they find there are no sufficient grounds for
interfering with the decree, the court may reject the Appeal. If the court does not reject the Appeal, then it proceeds to
hearing. The fact that the court has admitted your appeal does not mean you cannot get a default judgment so if you do
not appear, the court can dismiss the Appeal for default, it can also allow the Appeal for default. So just like a hearing,
you are required to appear at the hearing but unlike the High Court you do not have to appear for the Hearing in person.
You may find that in a case where the appellant does not wish to appear but would like the Appeal to proceed in that
case you will file a declaration in writing that you do not wish to be present in person or through an advocate. In such a
case you must then file two copies of your sole arguments which you desire to submit, once you file the two copies one
will be served on the respondent and the other is retained in the court file. The option is also available to the Respondent,
they can file their response in writing.
Suppose the Appellant appears and the Respondent does not appear, there will be an ex parte decision. You can always
apply to set aside an ex-parte judgment but you must show sufficient cause for not appearing.
PROCEDURE AT THE HEARING OF AN APPEAL
The procedure is that the Appellant has the right to begin. After hearing the Appellant in support of the appeal, if the
court finds that the Appeal has no substance it can dismiss the appeal without calling the Respondent. Additional of
parties or amendments can be done in the Court of Appeal as well.
POWERS OF THE APPELLATE COURT
Upon hearing the Appeal the Appellate Court may exercise the following powers:
1. It can opt to determine the case finally;
2. Remand the case;
3. Frame issues and refer them for retrial;
4. Take additional evidence or require such evidence to be taken;
5. Order a new trial;
The court will take various options depending on the grounds raised in the Appeal. The Appeal Court will confine you
to points.
1. To determine the case finally,
This power is exercised by the court where the evidence on the record is sufficient to enable the Appellate Court to
pronounce Judgment and to finally determine the case. This is the most common option of the court of appeal. It is
where from the record they are able to understand the problem and determine the case. It is usually the case.
In certain cases the record of appeal may not be sufficient to enable the Court to pronounce Judgment or to enable it
finally determine the Appeal. In which case they will opt to remand the case.
2. Power to Remand the Case
The general rule is that the court should as far as possible dispose the case or an Appeal using the evidence on record
and should not be remanded for fresh evidence except in rare cases. Remanded basically means to send back.
When can the court of appeal remand a case?
a) Where the trial court disposed off the case on preliminary point without hearing and recording evidence on other
issues.
b) Where the Appellate Court disagrees with the trial court. In such a case the Appellate court will set aside the
judgment and decree of the trial court and remand the case to the trial court for re-hearing and determination.
The Appellate Court may also direct what issues shall be tried in the case so remanded. Read Wambui Otieno
Case by passing an order of remand the Appellate Court directs the lower court to reopen and retry the case.
On remand the trial court will readmit the suit under its original number in the register of civil suits and they
will proceed to determine to hear it as per the directions of the court of appeal. The court can only exercise the
power to remand as set out by the Rules.

3. Suit disposed on a Preliminary Point

What is a preliminary Point? A point can be said to be preliminary if it is such that the decision thereon in a particular
way is sufficient to dispose of the whole suit without the necessity of a decision on the other points of the case. A
preliminary point may be one of fact or of law. But the decision thereon must have avoided the necessity for a full
hearing of the suit. For example
Preliminary Point of Law.-Suppose the issue of limitation of time or the doctrine of Res Judicata or the issue that the
pleadings do not disclose a course of action are raised at the trial court this is an example of a preliminary point of law.
Preliminary Point of Fact – suppose a lower court dismisses the suit on the ground that the plaintiff is estopped from
proving their case because maybe there was a prior agreement relating to the facts, again the same rule will apply that
as long as the decision was based on a preliminary point, then the Court of Appeal will set aside that decision.
4. The Court has power to Frame issues and refer them for Trial
The Court of Appeal may order that certain issues be framed and that they be referred to the lower court to be tried. The
Court of Appeal will exercise this power where the trial court did not frame issues properly or omitted to try a certain
issue or omitted to determine a certain question of fact which is essential to the right decision of the suit upon the merits.
The court will frame those issues and then refer them to the lower court for them to be tried. Normally it will refer them
with certain directions. The court of Appeal when they have all the issues on their bench can decide on the issues. The
court of appeal frames the issues sends them back to lower court and after they are dealt with they are sent back to the
court of Appeal.
5. Take additional evidence or require such evidence to be taken:
As we said at the beginning no additional evidence is taken at the court of Appeal unless
i. The lower court refused evidence which ought to have been admitted;
ii. Where the Court of Appeal needs certain documents or certain evidence to enable it to pronounce judgment;
iii. For any other substantial cause.
How does the court of appeal take fresh evidence?
i. The court of appeal may take the additional evidence itself;
ii. It may direct the original court to take the evidence;
iii. It may direct a lower court to take the evidence for it
Once the evidence is obtained, it is sent to the Court of Appeal and is used by the Court of Appeal to make its decision
How is fresh evidence taken?
i. Where the lower court has improperly refused to admit evidence which it ought to have admitted.
ii. Where there is discovery of new evidence.
If it was not improper it cannot be used as a basis for the Court of Appeal to
Admit fresh evidence. The court of appeal may find out that there is certain evidence they need to come to a final
decision, they can ask for fresh evidence to be taken or they can take it themselves which is rare.
6. Order a new trial
The power to order a new trial is intertwined with the power of review.

Conclusion.
This case maybe appealable but in this case we will have to invoke the courts of appeals powers to take fresh evidence
as there is material that was not originally pleaded which led to the suit being dismissed.