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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal 78 of 1998

1. Touring Cars Limited 2. City Merchants (k) Limited v Ashok Kumar Mankanji

Court of Appeal of Kenya
11 February 2000
2,100 words in judgment
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The bottom line

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Kenya's Court of Appeal restored an original judgment, ruling that judges cannot grant review on grounds nobody pleaded, and cannot award relief nobody claimed.

What this practically means

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Executive summary

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The Court of Appeal at Kisumu (Akiwumi, Tunoi and O'Kubasu JJA) allowed the appellants' appeal against a ruling of Wambilyanga J of 3rd July 1997 by which the judge had reviewed his own judgment of 30th May 1997 dismissing the respondent's suit for a permanent injunction over motor car KAG 270P. The review application, pleaded solely on the ground of mistake or error apparent on the face of the record, was supported by an affidavit which the Court found blatantly misled the court by asserting a request to consider pleadings in a related suit that the record showed was never made. The judge nonetheless granted review on the unpleaded ground of new and important evidence, without applying the due diligence test in Order 44 rule 1(1), and further converted the inquiry into 'any other sufficient reason', holding that trial evidence had been doctored. The Court held that a judge on review cannot go beyond the ambit of the application and that the due diligence requirement is mandatory. The ruling was set aside, the review application dismissed, and the original judgment of 30th May 1997 restored. On the respondent's cross-appeal, the first ground (damages for trespass) was abandoned; the costs ground failed; but the cross-appeal succeeded on the award of Kshs 900,000/= to the appellant, which had not been claimed, following Abdul Rehman v R. H. Gudka. The appellants received the costs of the appeal; each party was to bear their own costs of the review; and the respondent received no costs on the cross-appeal.

Key legal issues

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01

Scope of review under Order 44 rule 1(1)

Holding

Review is confined to the three statutory grounds and to the grounds actually pleaded and relied upon; the judge erred by exploring unpleaded grounds and converting a due-diligence inquiry into 'any other sufficient reason'.

Reasoning

The respondent's application was pleaded solely on mistake or error apparent on the face of the record. The judge, however, found new and important material evidence without considering whether it could with due diligence have been discovered, and then held 'for any other reason' that evidence had been doctored. The Court held the judge exceeded the ambit of the application and misapplied the review principles, warranting setting aside the ruling.

p. 3
02

Candour of the review application

Holding

The respondent's advocate misled the court by asserting a request to consider pleadings in a related suit that the record showed was never made, rendering the application undeserving.

Reasoning

An examination of the pleadings in HCCC No. 23 of 1997 established that no such request had been made. The Court characterised the assertion as blatantly misleading and uncandid, which by itself rendered the review application most undeserving. The false assertion was a spurious attempt to divert attention from the unsupportable due-diligence position.

p. 2
03

Preference of affidavit evidence over sworn oral testimony

Holding

The judge erred in holding, after an affidavit-based review hearing, that the oral evidence on oath of DW2 given at trial was false and doctored.

Reasoning

The review application was based on affidavits, yet the judge used that affidavit material to brand sworn trial evidence false without any proper basis. This was among the grounds of appeal and formed part of the Court's conclusion that the judge misdirected himself in preferring affidavit evidence to the direct evidence of the appellant's witnesses.

04

Award of unclaimed relief

Holding

The award of Kshs 900,000/= to the appellant, which was not claimed or counterclaimed, should not have been made; the cross-appeal succeeded on this issue.

Reasoning

The appellant's case was based on unlawful possession of stolen property, not on sale of the car, yet the judge awarded the alleged outstanding purchase price. Following Abdul Rehman v R. H. Gudka, relief not claimed cannot be awarded. However, as the respondent's own counsel introduced the issue, no costs were awarded to the respondent.

Legal principles established

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  • A review application under Order 44 rule 1(1) must be determined strictly on the grounds pleaded; a judge may not go beyond the ambit of the application as filed.
  • New and important matter or evidence relied on for review must satisfy the due diligence test under Order 44 rule 1(1).
  • An applicant who fails to establish the pleaded ground for review cannot have the court convert the application to an unpleaded ground.
  • A court should not award a party relief that was not claimed.

Court orders

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  1. 1.The ruling of the learned judge given on 3rd July 1997 is set aside
  2. 2.The respondent's application for review dated 4th June 1997 is dismissed
  3. 3.The judgment of the learned judge delivered on 30th May 1997 is restored
  4. 4.The appellants are awarded the costs of the appeal
  5. 5.The award of Kshs 900,000/= to the appellant, which was not claimed, is set aside (cross-appeal succeeds on this issue)
  6. 6.There will be no costs for the respondent on the cross-appeal
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 23 of 1997
Jurisdiction invoked
First appeal to the Court of Appeal against a ruling of the High Court (review jurisdiction under Order 44 of the Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "1. Touring Cars Limited 2. City Merchants (k) Limited v Ashok Kumar Mankanji", Case Analysis (2000). Civil Appeal 78 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/18/eng@2000-02-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.