Cosmas Buluma v Esau Namulanda & another [2015] KECA 261 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that court decisions can only be reviewed for genuinely new evidence, not facts you already knew, and delays kill review applications.
What this practically means
#Executive summary
#Key legal issues
#Whether grounds for review under section 80 of the Civil Procedure Act and Order XLIV were satisfied
The Court agreed with the High Court that no new and important matter or evidence was discovered; the death of the appellant's father was known to all parties and not raised before the High Court
The learned judge had found that the death of the appellant's father on 30th July 1994 was known to both parties throughout and was never raised before the High Court. The Court of Appeal endorsed this, holding that matter within the applicant's own knowledge at the time of the decision cannot constitute discovery of new and important matter warranting review.
Whether the deceased father should have been named in the appeal to the High Court
No - his claim had abated one year after his death and it would have been unprocedural to name a deceased person as a respondent
The trial magistrate was aware of the father's death, and the appellant, through an advocate, had elected to proceed alone as plaintiff. Since abatement occurs one year after death, the deceased's claim could not be revived by naming him in the subsequent appeal, so the omission was not a basis for review.
The scope of the appeal before the Court of Appeal
The appeal was confined to the judge's decision on the application for review, not the merits of the underlying High Court decision
The Court noted that several grounds in the memorandum of appeal, filed by the appellant in person, were irrelevant because they attacked the merits of the High Court decision, whereas the learned judge's task was only to assess whether the statutory grounds for review under section 80 and Order XLIV had been satisfied.
Legal principles established
#- Review under section 80 of the Civil Procedure Act requires discovery of new and important matter or evidence that was not within the applicant's knowledge at the time of the decision; matter already known to the parties does not qualify
- A deceased person's claim abates one year after death and it is unprocedural to name a deceased person as a respondent in an appeal
- Inordinate delay in bringing an application for review justifies its dismissal
Court orders
#- 1.The appeal is dismissed in its entirety
- 2.The appellant shall bear the costs of the appeal
- On appeal from
- High Court of Kenya at Busia
- H.C.C.A. No. 6 of 1997
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court under the Constitution and the Court of Appeal's appellate jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cosmas Buluma v Esau Namulanda & another [2015] KECA 261 (KLR)", Case Analysis (2015). Civil Appeal No. 18 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/261/eng@2015-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.