Introduction
1. The Notice of Motion dated 25th July 2025 seeks an order that this Court reviews and sets aside the judgment delivered on 31st January 2025. The application is supported by the grounds on its face and the Applicant’s written submissions. The Respondent opposes the application through the Grounds of Opposition dated 27th January 2025 and written submissions dated on even date.
2. The background to the matter is straightforward. In July 2020, the Applicant imported one 20-foot container of used pianos from Japan and declared the customs value thereof. The Applicant paid customs duty in the sum of Kshs. 315,794/= vide Entry No. 2020ICD220370 dated 7th July 2020. On 6th August 2020, the Respondent undertook a customs value uplift and demanded additional duty amounting to Kshs. 149,064/= without, according to the Applicant, furnishing any valuation basis or written explanation for the upliftment.
3. Aggrieved by the Respondent’s action, the Applicant addressed a letter dated 6th August 2020 to the Respondent seeking written reasons and justification for the upliftment of customs value pursuant to section 122(2) of the East African Community Customs Management Act, 2004 (“the EACCMA”). The Applicant’s position is that the said letter was merely a request for written explanation and not an application for review under section 229(1) of the EACCMA.
4. The dispute ultimately found its way before the Tax Appeals Tribunal, where the Respondent raised a preliminary objection contending that the Applicant had failed to invoke and exhaust the statutory review mechanism under section 229 of the EACCMA before approaching the Tribunal. The Tribunal upheld the objection and found that it lacked jurisdiction to entertain the matter.
5. The Applicant appealed against that decision to this Court. In a judgment delivered on 31st January 2025, the Court upheld the Tribunal’s finding and concluded that the Applicant had failed to comply with the mandatory review procedure under section 229 of the EACCMA before invoking the jurisdiction of the Tribunal.
6. The Applicant, vide the present application, now seeks review of that judgment on the ground that the Court committed an error of fact and law by misconstruing the letter dated 6th August 2020 as an application for review under section 229(1) of the EACCMA instead of a statutory request for written explanation under section 122(2) of the EACCMA.
7. The Applicant submits that section 122(2) of the EACCMA imposes a mandatory obligation upon the Commissioner to furnish written reasons for customs value uplift, upon request by the importer.
8. The Applicant contends that the Respondent’s failure to furnish written reasons rendered the customs value uplift procedurally defective and unlawful. Counsel for the Applicant asserted that failure to furnish written reasons violates both section 122(2) of the EACCMA and Article 47 of the Constitution.
9. The Applicant further submits that in the absence of written reasons, there was no reviewable decision capable of being subjected to the review mechanism under section 229(1) of the EACCMA. It is the Applicant’s case, therefore, that section 229(5) of the EACCMA became operative by reason of the Respondent’s failure to communicate a decision or furnish reasons.
10. The Respondent opposed the application vide a Ground of Opposition dated 27 January 2025, contending, in the main, that the Applicant has not satisfied the threshold for review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The Respondent submitted that the Applicant has neither demonstrated discovery of new evidence nor established an error apparent on the face of the record.
11. The Respondent contends that the issue concerning the letter dated 6th August 2020 was fully canvassed before the Court and considered in the judgment sought to be reviewed. It submits that the Applicant is effectively inviting the Court to sit on appeal over its own decision. The Respondent further submits that the Court is functus officio and that the Applicant’s recourse lies in an appeal to the Court of Appeal.
Analysis and Determination
12. The jurisdiction of the Court to review its own decree or order is conferred by section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act 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 hereby allowed, 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.”
13. Order 45 Rule 1 of the Civil Procedure Rules sets out the grounds upon which review may issue. These are: discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason.
14. The principles governing review jurisdiction are now settled. In National Bank of Kenya Limited v Ndungu Njau NRB CA Civil Appeal No. 211 of 1996 [1997] eKLR, the Court of Appeal stated as follows:
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter.”
15. Likewise, in Republic v Public Procurement Administrative Review Board & 2 Others [2018] eKLR, the Court emphasized that review is not an avenue for rehearing or re-arguing a matter already determined by the Court.
16. In the present case, the central complaint by the Applicant is that the Court misconstrued the letter dated 6th August 2020 by treating it as an application for review under section 229(1) of the EACCMA instead of a request for written reasons under section 122(2). In my view, that issue was squarely before the Court in the appeal and was considered in determining whether the Applicant had complied with the statutory review mechanism established under section 229 of the EACCMA.
17. The Applicant has not pointed to any new evidence that was unavailable at the time the judgment was delivered. Indeed, the letter dated 6th August 2020 formed part of the record before the Court and was expressly relied upon by the Applicant in the appeal. The complaint now advanced is essentially that the Court reached the wrong conclusion regarding the legal effect of the letter.
18. Whether the Court correctly interpreted the letter and the interplay between sections 122 and 229 of the EACCMA is a matter that goes to the merits of the judgment itself. Such a complaint falls within the province of an appellate court and not review jurisdiction. A review cannot be used to reopen arguments already considered and determined by the Court.
19. In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR, the Court of Appeal reiterated that review is not intended to provide a litigant with an opportunity to re-argue his case or invite the Court to take a different view from that already taken.
20. I also agree with the Respondent that the alleged error is not self-evident on the face of the record. Determining whether the Applicant’s letter constituted a request under section 122(2) or a review application under section 229(1) requires examination of the evidence, interpretation of the statutory framework and evaluation of the Court’s reasoning. That exercise necessarily entails elaborate argument and cannot therefore constitute an error apparent on the face of the record.
21. The Applicant also invoked section 229(5) of the EACCMA and argued that the Respondent’s failure to provide written reasons triggered the statutory presumption contemplated under that provision. Again, this was a substantive issue touching on the correctness of the judgment. It is not a proper basis for review.
22. The upshot of the foregoing is that I am not satisfied that the Applicant has established any of the grounds necessary to warrant review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
23. Accordingly, the Notice of Motion dated 25th July 2025 is therefore dismissed with costs to the Respondent.
24. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Mkan…………………for the Applicant
Nyakio……………….for the Respondent
1. The Notice of Motion dated 25th July 2025 seeks an order that this Court reviews and sets aside the judgment delivered on 31st January 2025. The application is supported by the grounds on its face and the Applicant’s written submissions. The Respondent opposes the application through the Grounds of Opposition dated 27th January 2025 and written submissions dated on even date.
2. The background to the matter is straightforward. In July 2020, the Applicant imported one 20-foot container of used pianos from Japan and declared the customs value thereof. The Applicant paid customs duty in the sum of Kshs. 315,794/= vide Entry No. 2020ICD220370 dated 7th July 2020. On 6th August 2020, the Respondent undertook a customs value uplift and demanded additional duty amounting to Kshs. 149,064/= without, according to the Applicant, furnishing any valuation basis or written explanation for the upliftment.
3. Aggrieved by the Respondent’s action, the Applicant addressed a letter dated 6th August 2020 to the Respondent seeking written reasons and justification for the upliftment of customs value pursuant to section 122(2) of the East African Community Customs Management Act, 2004 (“the EACCMA”). The Applicant’s position is that the said letter was merely a request for written explanation and not an application for review under section 229(1) of the EACCMA.
4. The dispute ultimately found its way before the Tax Appeals Tribunal, where the Respondent raised a preliminary objection contending that the Applicant had failed to invoke and exhaust the statutory review mechanism under section 229 of the EACCMA before approaching the Tribunal. The Tribunal upheld the objection and found that it lacked jurisdiction to entertain the matter.
5. The Applicant appealed against that decision to this Court. In a judgment delivered on 31st January 2025, the Court upheld the Tribunal’s finding and concluded that the Applicant had failed to comply with the mandatory review procedure under section 229 of the EACCMA before invoking the jurisdiction of the Tribunal.
6. The Applicant, vide the present application, now seeks review of that judgment on the ground that the Court committed an error of fact and law by misconstruing the letter dated 6th August 2020 as an application for review under section 229(1) of the EACCMA instead of a statutory request for written explanation under section 122(2) of the EACCMA.
7. The Applicant submits that section 122(2) of the EACCMA imposes a mandatory obligation upon the Commissioner to furnish written reasons for customs value uplift, upon request by the importer.
8. The Applicant contends that the Respondent’s failure to furnish written reasons rendered the customs value uplift procedurally defective and unlawful. Counsel for the Applicant asserted that failure to furnish written reasons violates both section 122(2) of the EACCMA and Article 47 of the Constitution.
9. The Applicant further submits that in the absence of written reasons, there was no reviewable decision capable of being subjected to the review mechanism under section 229(1) of the EACCMA. It is the Applicant’s case, therefore, that section 229(5) of the EACCMA became operative by reason of the Respondent’s failure to communicate a decision or furnish reasons.
10. The Respondent opposed the application vide a Ground of Opposition dated 27 January 2025, contending, in the main, that the Applicant has not satisfied the threshold for review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The Respondent submitted that the Applicant has neither demonstrated discovery of new evidence nor established an error apparent on the face of the record.
11. The Respondent contends that the issue concerning the letter dated 6th August 2020 was fully canvassed before the Court and considered in the judgment sought to be reviewed. It submits that the Applicant is effectively inviting the Court to sit on appeal over its own decision. The Respondent further submits that the Court is functus officio and that the Applicant’s recourse lies in an appeal to the Court of Appeal.
Analysis and Determination
12. The jurisdiction of the Court to review its own decree or order is conferred by section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act 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 hereby allowed, 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.”
13. Order 45 Rule 1 of the Civil Procedure Rules sets out the grounds upon which review may issue. These are: discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason.
14. The principles governing review jurisdiction are now settled. In National Bank of Kenya Limited v Ndungu Njau NRB CA Civil Appeal No. 211 of 1996 [1997] eKLR, the Court of Appeal stated as follows:
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter.”
15. Likewise, in Republic v Public Procurement Administrative Review Board & 2 Others [2018] eKLR, the Court emphasized that review is not an avenue for rehearing or re-arguing a matter already determined by the Court.
16. In the present case, the central complaint by the Applicant is that the Court misconstrued the letter dated 6th August 2020 by treating it as an application for review under section 229(1) of the EACCMA instead of a request for written reasons under section 122(2). In my view, that issue was squarely before the Court in the appeal and was considered in determining whether the Applicant had complied with the statutory review mechanism established under section 229 of the EACCMA.
17. The Applicant has not pointed to any new evidence that was unavailable at the time the judgment was delivered. Indeed, the letter dated 6th August 2020 formed part of the record before the Court and was expressly relied upon by the Applicant in the appeal. The complaint now advanced is essentially that the Court reached the wrong conclusion regarding the legal effect of the letter.
18. Whether the Court correctly interpreted the letter and the interplay between sections 122 and 229 of the EACCMA is a matter that goes to the merits of the judgment itself. Such a complaint falls within the province of an appellate court and not review jurisdiction. A review cannot be used to reopen arguments already considered and determined by the Court.
19. In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR, the Court of Appeal reiterated that review is not intended to provide a litigant with an opportunity to re-argue his case or invite the Court to take a different view from that already taken.
20. I also agree with the Respondent that the alleged error is not self-evident on the face of the record. Determining whether the Applicant’s letter constituted a request under section 122(2) or a review application under section 229(1) requires examination of the evidence, interpretation of the statutory framework and evaluation of the Court’s reasoning. That exercise necessarily entails elaborate argument and cannot therefore constitute an error apparent on the face of the record.
21. The Applicant also invoked section 229(5) of the EACCMA and argued that the Respondent’s failure to provide written reasons triggered the statutory presumption contemplated under that provision. Again, this was a substantive issue touching on the correctness of the judgment. It is not a proper basis for review.
22. The upshot of the foregoing is that I am not satisfied that the Applicant has established any of the grounds necessary to warrant review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
23. Accordingly, the Notice of Motion dated 25th July 2025 is therefore dismissed with costs to the Respondent.
24. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 21ST DAY OF MAY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
Mkan…………………for the Applicant
Nyakio……………….for the Respondent