Consolidated Bank of Kenya v Mutisya & 2 others (Civil Appeal 396 of 2019) [2021] KECA 346 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that forgotten or overlooked documents cannot justify review of a judgment — you must present your evidence at trial or on appeal.
What this practically means
#Executive summary
#Key legal issues
#Discovery of new and important matter or evidence
The Appellant's claim that relevant documents were omitted because staff left and counsel forgot does not meet the due diligence threshold of Order 45 Rule 1(1)(b)
The affidavit of Mr. Anjichi admitted the information was available to the bank at filing but was innocently omitted during preparation of pleadings. The court held that evidence the applicant had within its reach all along, requiring no heightened diligence, is not 'new' matter. Review cannot be used to introduce evidential documents that were never on the court record; such evidence may only come in on leave before judgment or on appeal.
Error apparent on the face of the record
No error apparent on the face of the record was established merely because the plaint alluded to a registered charge
Counsel argued that the plaint itself showed the charge over Mbooni/Iiani/107. The court held that an allusion in the plaint did not confer a right to introduce the charge documents via review; such evidence requires leave before judgment or on appeal. The evidence was within the appellant's hands at trial, so nothing on the record was erroneous.
Other sufficient reasons and the distinction between review and appeal
Forgetfulness or inadvertent omission cannot constitute other sufficient reason; and review grounds are distinct from appeal grounds
Relying on Michael Muriuki Ngubuini, counsel urged that 'sufficient reason' covers misconception of fact or law. The court agreed that error by counsel or court may be error apparent, but negligence is not. Citing Abasi Belinda and William Karani, it observed that review and appeal grounds are distinct, and that once a main appeal is filed, an appeal from refusal of review is washed away - explaining why the two appeals were determined separately.
Legal principles established
#- Information or documents that a party had in its possession or knowledge at trial, but omitted through forgetfulness or inadvertence, does not constitute discovery of new and important matter for review under Order 45 Rule 1(1)(b)
- Negligent conduct or inadvertent omission by a party or counsel is not an 'other sufficient reason' for review; and one cannot apply for review of a judgment from which an appeal has been preferred
- Once the main appeal from a judgment is filed, any appeal arising from refusal to review that judgment is washed away
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the Respondents
- On appeal from
- High Court of Kenya at Makueni
- Makueni High Court Case No. 5 of 2018 (Ruling of 4th July 2019)
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act over an appeal from the High Court's ruling on an application for review under Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Consolidated Bank of Kenya v Mutisya & 2 others (Civil Appeal 396 of 2019) [2021] KECA 346 (KLR)", Case Analysis (2021). Civil Appeal (appeal against the Ruling of H. Ong'undi, J in Makueni High Court Case No. 5 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/346/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.