Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR)
The bottom line
#The Court of Appeal dismissed Rose Kaiza's appeal, confirming that you cannot use 'review' to reopen evidence you could have used in your original case.
What this practically means
#Executive summary
#Key legal issues
#Whether the ground that the transfer was not in the prescribed form could support review
It could not; the transfer was in the appellant's possession long before the suit and any failure to notice its form or seek confirmation of approval was lack of due diligence
The Court held the transfer was the very basis of the appellant's complaint to the police and of the Originating Summons, so its form and authenticity could not be a post-judgment discovery. The Judge had also found the form was approved by the Chief Land Registrar under section 108 of the Registered Land Act, a finding the Court of Appeal saw no reason to fault. Absent due diligence, review could not lie.
Whether the Judge erred in preferring the Land Registrar's evidence over the document examiner's opinion
He did not; the conflicting evidence was properly tested by cross-examination and the credibility assessment based on demeanour could not be disturbed on appeal
Both counsel relied on Dhalay v Republic, which permits rejection of expert opinion on good and cogent grounds. Here there was direct evidence from the Land Registrar in conflict with the expert's opinion. The Registrar's acceptance of discrepancies, coupled with his explanation of a hand injury, did not confirm the expert. The Judge who heard and watched the witnesses was best placed to weigh credibility.
Whether the impugned procedure of cross-examining affidavit deponents in a review was proper
Yes; although unusual, it was a legitimate means of resolving conflicting affidavit evidence
The Judge, out of abundant caution and because the application presented an unusual phenomenon, summoned the Land Registrar and the document examiner for cross-examination on their conflicting affidavits. The Court of Appeal held this was within the Judge's entitlement, and the resulting credibility findings, preferring the Land Registrar, were sound and entitled to deference.
Legal principles established
#- A review under Order 44 rule 1 on discovery of new facts requires that the new matter was not within the applicant's knowledge and could not with due diligence have been produced at the time the decree was passed; matter already in the applicant's possession before the original hearing does not qualify
- Applications for review on the ground of discovery of new evidence must be treated with great caution, and the applicant must show due diligence and lack of remissness in adducing all possible evidence at the hearing
- An expert handwriting opinion unaccompanied by conflicting evidence cannot be rejected without good and cogent grounds; where there is conflicting direct evidence, the court may reject the opinion if satisfied it is not soundly based, and credibility findings by the trial judge who observed demeanour will not be disturbed
- An expert on handwriting cannot state definitively that a particular person wrote a particular document; the court must itself examine the writing and cannot blindly accept expert opinion
- A court may, in an appropriate case, summon deponents of conflicting affidavits for cross-examination in a review application to resolve the conflict
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C. No. 155 of 2005 (OS)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (not expressly cited in the judgment; appeal lies from the High Court ruling on review)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gichuhi Chairman & 2 others (Suing for and on Behalf of Marurui Estate Residents Welfare Association) v Mwaniki & another (Environment and Land Case 473 of 2008) [2026] KEELC 2511 (KLR)[2026] KEELC 2511 (KLR)30 Apr 2026applied
- Dennis Pritt Residents Association & 4 others v Nairobi City County Government & 6 others (Petition E037 of 2024) [2026] KEELC 2427 (KLR)[2026] KEELC 2427 (KLR)30 Apr 2026applied
- Maruti v Maruti (Enviromental and Land Originating Summons E002 of 2024) [2026] KEELC 1558 (KLR)[2026] KEELC 1558 (KLR)18 Mar 2026applied
- Mbugua & 85 others v Ministry of Lands & 59 others (Civil Application E096 of 2023) [2025] KECA 1134 (KLR)[2025] KECA 1134 (KLR)20 Jun 2025applied
- Ijait C. Aluku v Salome Mwanaisha Madaga & 5 others [2020] KEELC 874 (KLR)[2020] KEELC 874 (KLR)27 Oct 2020
- Elphas Otiende Anduru v Akwera Hezron Ndegu & another [2020] KEELC 1528 (KLR)[2020] KEELC 1528 (KLR)29 Jul 2020
- Jesica Songole & another v Charles A. Muyunzu Kwenya & another [2019] KEELC 2290 (KLR)[2019] KEELC 2290 (KLR)23 Jul 2019applied
Cite this brief
#Cite this brief
Caselaw, "Rose Kaiza v Angelo Mpanju Kaiza [2009] KECA 422 (KLR)", Case Analysis (2009). Civil Appeal (Court of Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/422/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.