Dubai Bank Kenya Limited v Kwanza Estates Limited [2015] KECA 633 (KLR)
The bottom line
#The Court of Appeal confirmed that Kenyan review applications based on new evidence can be heard by any judge, and courts reject applications used to delay winning parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court lacked jurisdiction to hear the review application because it was heard by a judge other than the one who made the order under review
The High Court had jurisdiction. Under Order 45 Rule 2, only reviews on 'some other sufficient reason' must go before the same judge; a review based on discovery of new and important matter or clerical error may be heard by any judge attached to the court. Order 45 Rule 2(3) was inapplicable.
The court read Order 45 Rules 1 and 2 together. Rule 2(1) restricts reviews on 'some other sufficient reason' to the same judge, while Rule 2(2) allows any judge of that court where the original judge is no longer attached, and Rule 2(3) introduces the Chief Justice designation only where the original judge is precluded for three months. Since the review was founded on discovery of new evidence, Rule 2(3) did not apply and any judge in the division could hear it. The same-judge requirement is procedural, not substantive.
Whether a jurisdictional objection not raised in the High Court could be raised for the first time on appeal
Yes. The normal bar against raising new points on appeal does not apply to issues going to jurisdiction.
The court acknowledged that it would have been prudent to raise the jurisdiction question before the superior court, but relying on Floriculture International Ltd v Central Kenya Ltd and Kenidia Assurance Co. Ltd v Otiende, it held that lack of jurisdiction cannot be cured by acquiescence. Even where the point was not raised below, failure to raise it does not confer jurisdiction on a court that has none.
Whether the learned judge misdirected herself in dismissing the review application
No. She properly exercised her discretion: the impugned ruling did not rest on the Memorandum of Agreement, the expert report was defective, the alleged forgery was not new matter, and the appellant had not acted with due diligence.
The court endorsed the judge's finding that the ruling of Muya, J. was anchored on defective statutory notices under the Land Act, undervalue of the intended sale, and the unremitted call deposit, not on the Memorandum of Agreement. The forensic report lacked the documents relied on by the expert. The appellant knew of the alleged forgery by 4th June 2013 yet complained to police only on 1st October 2013 and filed review on 4th December 2013, over four months after the ruling. This conduct showed the application was aimed at keeping the respondent from enjoying the fruits of litigation.
Legal principles established
#- The requirement that a review application be heard by the same judge who made the order under review is a procedural technicality; under Order 45 Rule 2, a review based on discovery of new and important matter or clerical error may be heard by any judge attached to the court, and the Chief Justice designation rule in Order 45 Rule 2(3) applies only to reviews on 'some other sufficient reason' where the original judge is precluded for three months.
- A question of jurisdiction may be raised for the first time on appeal notwithstanding that it was not raised in the superior court.
- An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong, based on misdirection, or arrived at by considering wrong or ignoring relevant matters.
- A court exercising review jurisdiction cannot sit on appeal over a decision of a court of coordinate jurisdiction; an issue raised, argued and determined cannot be re-argued on review, the remedy being appeal.
- The burden of proving due diligence in pursuing alleged new evidence of fraud or forgery lies on the applicant for review; conduct is the test distinguishing due diligence from an attempt to re-litigate.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
- On appeal from
- High Court of Kenya at Mombasa, Commercial & Admiralty Division
- H.C.C.C No. 44 of 2013
- Jurisdiction invoked
- Appellate jurisdiction under the Court of Appeal Act over an appeal from the High Court; the High Court's jurisdiction was anchored on Article 165 of the Constitution and section 80 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dubai Bank Kenya Limited v Kwanza Estates Limited [2015] KECA 633 (KLR)", Case Analysis (2015). Civil Appeal No. 37 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/633/eng@2015-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.