George M Muhoro v Mwalimu Investment Company & another [2020] KECA 872 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Muhoro's bid to overturn a 1997 judgment, confirming review only works for evidence you truly could not have found earlier.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge misdirected himself in failing to determine the validity of the unsigned and undated judgment of 27th June 1997
- 2.Whether the appellant discovered new and important matter or evidence which, after due diligence, could not be produced at the trial, warranting review under Order 45 of the Civil Procedure Rules
- 3.Whether the High Court erred in failing to determine whether execution of the decree was barred under Section 4(4) of the Limitation of Actions Act
Key legal issues
#Whether an appellate court may entertain an issue never canvassed before the trial court
The ground concerning the unsigned and undated judgment was raised only in submissions before the High Court and never placed before it for determination; the Judge cannot be faulted for not considering it.
The Court held that the validity of the unsigned and undated judgment was first raised in the appellant's submissions dated 26th February 2014 and was never the subject of evidence or argument before the High Court. Because an appellate court's jurisdiction is confined to issues presented to the trial court, the ground of appeal could not stand. The Court reinforced this with the Ol Pejeta principle that a litigant cannot hang on a defence never raised and prosecuted below, as such an afterthought is prejudicial to the respondent.
Whether the alleged discovery of new evidence justified review under Order 45 rule 1
The letters allegedly evidencing the deposit of Kshs.1,000,000 with Continental Credit Finance Limited were addressed to, copied to, or authored by the appellant before the suit was filed, so no new matter discovered after due diligence existed.
The Court examined the bundle of correspondence annexed to the appellant's affidavit and found that key letters were directly addressed to him, carbon copied to him or his client, or authored by him, dating from 1985, well before the 1994 suit. No evidence was presented showing why the documents could not have been produced before the defence was struck out. The Court therefore agreed with the High Court that the application did not fall within the scope of Order 45 rule 1.
The scope of review versus appellate power
Complaints that the trial court should have cross-examined parties to determine the matter on merit are the province of an appellate court, not a forum for review.
The appellant argued that the suit was decided summarily without cross-examination and was therefore not determined on merit. The Court agreed with the High Court that such recourse lay in an appeal. It emphasized that review is a very restricted power not to be confused with appellate powers, which exist to correct errors committed by the superior court. Interference with the Judge's exercise of discretion was warranted only on the Mbogo v Shah principles, which were not satisfied here.
Whether the Court should determine the limitation defence under Section 4(4) of the Limitation of Actions Act
The limitation question was still pending before the High Court, which had confined its ruling to the notice of motion; it would be premature for the Court of Appeal to determine it.
The appellant raised the limitation of actions issue by a preliminary objection dated 21st June 2012 after execution orders issued against him. On perusal of the proceedings before Sergon, J, the Court found the ruling was limited to the notice of motion dated 21.6.2012. Since the limitation question remained open before the High Court, the Court declined to make a determination on it, treating such a determination as premature.
Legal principles established
#- An appellate court will not interfere with a judge's discretionary decision on review unless the judge misdirected himself, misapprehended the law, or took into account irrelevant matters or failed to consider relevant ones.
- A party cannot raise on appeal an issue that was never presented or argued before the trial court.
- Review under Order 45 requires that the new and important matter or evidence could not, with due diligence, have been produced at the trial; evidence already in a party's possession before the suit does not qualify.
- The power of review is restricted and is not to be confused with appellate powers; complaints about the manner a suit was determined on merit are for an appellate court.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading judgment dismissing the appeal, holding that the High Court properly declined to review the 1997 judgment as no new evidence discoverable with due diligence was shown, and that issues not raised before the High Court could not be raised on appeal.
In the end, having carefully considered this appeal, I am not persuaded that the learned Judge committed any error to warrant my interference with his judgment.p. 3
Wrote the judgment
Concurred fully with the judgment of Warsame, JA in a brief separate concurring opinion.
I fully concur with the Judgment of my learned brother Warsame, J.A, which I had the benefit of perusing in draft, and have nothing useful to add.p. 3
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 3568 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court (Court of Appeal Rules, Rule 32(3) invoked for delivery of judgment after death of a member of the bench)
Relief refused
#Setting aside the judgment of Ole Keiwua, J. of 27th June 1997 and allowing the parties to be heard on merit
The appellant failed to establish grounds for review under Order 45; the alleged new evidence was in his possession before the suit was filed, and issues such as the need for cross-examination belong to an appeal, not a review
A determination on whether execution of the decree was barred by Section 4(4) of the Limitation of Actions Act
The question of limitation of time remained pending before the High Court, which had limited its ruling to the notice of motion dated 21.6.2012
Costs
Appeal dismissed with costs to the 2nd respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The jurisdiction of an appellate court is to look into issues that were presented before the trial court. A court cannot be said to have erred on an issue that was never argued before it.
I cannot, therefore by any stretch of imagination say that the appellant had discovered new and important matter which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the suit was filed.
The power of review is a very restricted power and is not to be confused with appellate powers which may enable an appellate Court to correct all manner of errors committed by the superior Court.
In the end, having carefully considered this appeal, I am not persuaded that the learned Judge committed any error to warrant my interference with his judgment. In the circumstance I dismiss the appeal with costs to the 2nd respondent.
Issues in the judgment
#The judgment is dated '21st day of February, 2019' in Warsame, JA's portion but Kiage, JA's concurring judgment bears the date '21st day of February, 2020', an internal inconsistency in the dates of delivery.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George M Muhoro v Mwalimu Investment Company & another [2020] KECA 872 (KLR)", Case Analysis (2019). Civil Appeal No. 339 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/872/eng@2020-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.