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Court of AppealDismissedCivil Appeal No. 18 of 2013· [2015] KECA 261 (KLR)

Cosmas Buluma v Esau Namulanda & another [2015] KECA 261 (KLR)

Court of Appeal
6 November 2015
899 words in judgment
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The bottom line

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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

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Executive summary

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The appellant, appearing in person, appealed to the Court of Appeal at Kisumu against a ruling of the High Court at Busia (Kibunja, J.) dismissing his application for review of a High Court judgment. The underlying dispute arose from Busia RMCC No. 56 of 1992, a land suit filed jointly by the appellant and his late father, Richard Buluma. The father died during the pendency of the suit; the appellant elected to proceed alone, and judgment was delivered in his favour. On the respondent's appeal, the High Court remitted the case to the lower court, which referred it to a Land Disputes Tribunal that ruled in the appellant's favour. The appellant later sought review of the High Court judgment, contending that the appeal had been filed without naming his late father as a party. The High Court dismissed the application, holding that the father's death was known to both parties, that no new and important matter had been discovered, and that the application, filed almost nine years after the order sought to be reviewed, was inordinately delayed. The Court of Appeal, in a unanimous judgment, agreed: the deceased's claim had abated one year after his death and it would have been unprocedural to name him as a respondent; the application did not satisfy section 80 of the Civil Procedure Act and Order XLIV rules 1 & 2 of the (repealed) Civil Procedure Rules. The appeal was dismissed in its entirety with costs to the appellant.

Key legal issues

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01

Whether grounds for review under section 80 of the Civil Procedure Act and Order XLIV were satisfied

Holding

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

Reasoning

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.

p. 2
02

Whether the deceased father should have been named in the appeal to the High Court

Holding

No - his claim had abated one year after his death and it would have been unprocedural to name a deceased person as a respondent

Reasoning

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.

p. 2
03

The scope of the appeal before the Court of Appeal

Holding

The appeal was confined to the judge's decision on the application for review, not the merits of the underlying High Court decision

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed in its entirety
  2. 2.The appellant shall bear the costs of the appeal

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure Rules (repealed)Order XLIV rules 1 & 2
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

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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, "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.