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Court of AppealDismissedCivil Appeal No. 5 of 2013

Justus M'inoti M'mwambia v M'rukunga M'mboroki & another [2014] KECA 79 (KLR)

Court of Appeal of Kenya
26 February 2014
2,782 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed you cannot revive an old court case by asking for review using information you already knew when the case was decided.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Visram, Koome & Odek, JJ.A) dismissed this first appeal against a ruling of the High Court at Meru (Makau, J.) dated 18th October 2012, which had refused the appellant's application for review of an earlier ruling of 3rd November 2011 dismissing his attempt to set aside an ex parte judgment. The underlying suit, filed in 1996 by the 1st respondent claiming fraudulent transfer of land L.R No. Nyaki/Thuura/1911, proceeded to interlocutory and then formal proof judgment against the appellant, who never filed a defence. The appellant sought to set aside the judgment in 2010, attributing the failure to file a defence to his late advocate, and then sought review on the ground that the suit was res judicata in light of earlier consolidated Meru magistrate's court suits. The Court of Appeal held that review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules requires new and important matter not obtainable with due diligence, an error apparent on the face of the record, or other sufficient reason. Since the appellant was himself a party to the earlier suits, he could not claim discovery of new matter; he did not prove any conflicting court orders; the 1st respondent was not a party to the earlier suits, so there was no res judicata under Section 7; and the appellant's explanation of counsel's mistake was unreasonable given his failure to follow up the matter and his five-year delay in seeking to set aside the judgment. The court, applying the established restraint on interfering with judicial discretion, found no misdirection by the learned Judge, dismissed the appeal, and awarded costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in dismissing the appellant's application for review and setting aside of the ruling dated 3rd November 2011
  2. 2.Whether the appellant disclosed new and important matter or evidence discovered after the ruling, namely the lower court suits raising res judicata
  3. 3.Whether there was any other sufficient reason to warrant review, including the mistake of the appellant's late advocate and the alleged res judicata under Section 7 of the Civil Procedure Act
  4. 4.Whether the Court of Appeal could interfere with the Judge's exercise of discretion

Key legal issues

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01

Requirements for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

Holding

An applicant for review must place material before the court showing new and important matter or evidence not obtainable with due diligence, or an error apparent on the face of the record, or any other sufficient reason

Reasoning

The court adopted its earlier statement in Mulembe Farm Ltd v John B. Masika setting out the three grounds for review. The evidence must not only be new; the applicant must prove he did not have it at the time and could not have obtained it despite due diligence. The appellant, having been a party to the lower court suits, could not claim the material was new, and did not prove any variance of court orders or misleading of the court.

p. 4
02

Res judicata under Section 7 of the Civil Procedure Act

Holding

The High Court suit was not res judicata because the 1st respondent was not a party to the lower court suits, and the applicant had not annexed the pleadings to show the nature of the prior disputes

Reasoning

The court concurred with Makau, J.'s finding that the plaintiff in the High Court suit was not a party to the earlier consolidated suits, so Section 7 was not engaged. Section 7 requires the matter to have been directly and substantially in issue in a former suit between the same parties or parties under whom they claim, litigating under the same title, before a competent court, and finally decided.

p. 4
03

Whether the mistake of the appellant's late advocate and the delay in seeking relief constituted sufficient reason

Holding

The explanation of counsel's mistake was not reasonable; the appellant did not prove he diligently followed up the matter from 1996 to 2009, and the five-year delay in applying to set aside the ex parte judgment was inordinate and inexcusable

Reasoning

Review jurisdiction is circumscribed and is invoked to help a party who has taken all essential steps but could not avail relevant material due to factors beyond his control. The appellant's advocate died in 2009, four years after the 2005 judgment, and the appellant only applied to set aside in 2010 without satisfactorily explaining his lack of diligence over the intervening years.

p. 5

Legal principles established

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  • An order of review can only issue upon discovery of new and important matter or evidence which, after due diligence, was not within the knowledge of the applicant at the time the judgment or ruling was passed
  • A party who was himself a party to earlier suits cannot rely on those suits as new and important matter discovered after the order sought to be reviewed
  • The Court of Appeal will not interfere with a judge's exercise of discretion on review unless the judge misdirected himself, misapprehended the law, or failed to take into account relevant matters, resulting in a wrong decision or miscarriage of justice

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
Martha Karambu Koome
Martha KoomeJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Meru
H.C.C.C No. 13 of 1996
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164; Civil Procedure Act) - judgment does not cite a specific provision

Relief refused

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Review and setting aside of the High Court ruling dated 3rd November 2011 dismissing the application to set aside the ex parte judgment

The appellant was a party to the lower court suits and could not claim the res judicata material was new; the alleged court orders in variance were not proved; and the explanation of the advocate's mistake was not reasonable, the appellant having been inordinate and inexcusable delay in bringing the setting aside application

p. 5

Costs

Appeal dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Having expressed ourselves as above, we find that this appeal lacks merit. Accordingly, it is dismissed with costs to the respondents.
p. 5Disposition - appeal dismissed with costs
It is trite law that an order of review can only be issued upon discovery of new and important matter or evidence which after due diligence was not within the knowledge of the applicant at the time the judgment/ruling was passed
p. 4Requirements for review
The power of review is not the same as the power exercisable on appeal. That is why the jurisdiction of the court in review is circumscribed.
p. 5Circumscribed nature of review jurisdiction
The delay was inordinate and inexcusable.
p. 5Inordinate delay in setting aside ex parte judgment

Issues in the judgment

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minor

The judgment inconsistently refers to the High Court ruling date as 3rd November 2011 and 3rd November 2010

minor

The heading describes the appeal as from a ruling dated 18th October 2012 (the review ruling), while the body also refers to an appeal from the ruling of 3rd November 2011; the two rulings are distinct and the judgment's framing shifts between them

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Justus M'inoti M'mwambia v M'rukunga M'mboroki & another [2014] KECA 79 (KLR)", Case Analysis (2014). Civil Appeal No. 5 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/79/eng@2014-02-26

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