Dubai Bank Kenya Limited v Kwanza Estates Limited [2015] KECA 729 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a review based on new evidence can be heard by any judge, and delayed fraud claims fail for lack of diligence.
What this practically means
#Executive summary
#Key legal issues
#Whether the judge who heard the review application, being other than the judge who made the order under review, lacked jurisdiction under Order 45 of the Civil Procedure Rules
No jurisdictional defect arose. Since the review was based on discovery of new and important matter, Order 45 Rule 2(3) requiring designation by the Chief Justice was inapplicable, and the same-judge requirement is a procedural technicality; any judge attached to the station could hear the review.
The court read Order 45 Rule 1 together with Order 45 Rule 2 and held that the same-judge requirement applies only to reviews on 'some other sufficient reason'. A review founded on discovery of new and important matter may be heard by any judge attached to the court. The requirement is procedural, not substantive, and non-compliance does not go to the root of the matter or occasion a miscarriage of justice. Kasango, J., a judge of coordinate jurisdiction, was properly seized of the review.
Whether the jurisdictional issue, not raised in the High Court, could be raised for the first time on appeal
Yes. Following Floriculture International Ltd v Central Kenya Ltd and Kenidia Assurance Co Ltd v Otiende, the normal rule against raising new points on appeal does not apply where the point goes to jurisdiction.
The court accepted the settled principle that jurisdiction is everything and a court without jurisdiction must down its tools. However, it noted Nyarangi J's dictum that jurisdictional questions should be raised at the earliest opportunity, and observed that it would have been prudent for the appellant to raise the question before the superior court. Nevertheless, failure to confer jurisdiction where none exists means the point may be entertained on appeal.
Whether Kasango, J. exceeded the purview of review jurisdiction and sat on appeal over the ruling of Muya, J.
No. The review judge properly declined to re-open matters because the alleged forgery of the Memorandum of Agreement was not new evidence, the appellant failed to exercise due diligence, and the report of the appellant's handwriting expert could not be relied upon.
The court endorsed the principle that a review cannot be used where another judge could have taken a different view or where the court misconstrued the law; the remedy for such complaints is appeal. The alleged forgery of the Memorandum of Agreement had been canvassed extensively before Muya, J. and was therefore res judicata. The appellant knew of the alleged forgery as early as 4th June 2013 yet made a police complaint only on 1st October 2013, demonstrating lack of due diligence and suggesting a calculated move to deny the respondent the fruits of its success.
Legal principles established
#- The requirement that a review application be heard by the judge who made the order under review is a procedural technicality, not a substantive statutory requirement; a review based on discovery of new and important matter or evidence may be heard by any judge attached to the station.
- Order 45 Rule 2(3) of the Civil Procedure Rules (requiring designation by the Chief Justice) applies only to reviews on grounds other than discovery of new and important matter, and does not apply where the judge hearing the review is attached to the same court.
- An issue of jurisdiction may be raised for the first time on appeal even where it was not raised in the court below.
- An appellate court will not interfere with the exercise of discretion by an inferior court unless the decision is clearly wrong, having misdirected itself or acted on, or failed to consider, relevant matters and thereby reached a wrong conclusion.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal 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 of the Court of Appeal under the Constitution over appeals from the High Court; the review application below was founded on section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dubai Bank Kenya Limited v Kwanza Estates Limited [2015] KECA 729 (KLR)", Case Analysis (2015). Civil Appeal No. 37 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/729/eng@2015-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.