Unigroup Transporters Limited v Mwasame (Civil Appeal E088 of 2021) [2024] KECA 567 (KLR)
The bottom line
#The Court of Appeal confirmed that Kenyan courts will only reopen cases on 'new evidence' if the party honestly tried to find and use it 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 erred in rejecting the appellant's explanations for failing to produce the memorandum of appearance and statement of reply before judgment on the appeal
- 2.Whether the discovery of the memorandum of appearance and statement of reply constituted new and important matter or evidence warranting review under rule 33(1)(a) of the ELRC (Procedure) Rules
- 3.Whether the learned Judge misdirected himself in doubting the veracity of the two documents despite their court stamp and receipt
- 4.Whether the Court of Appeal should interfere with the exercise of the learned Judge's discretion on review
Key legal issues
#Due diligence as the determining factor in applications for review on the ground of discovery of new and important matter or evidence
The appellant failed to exhibit due diligence; it did not even inquire from its erstwhile advocates whether appearance had been entered or a reply filed, and there was no confirmation from that firm, so the Judge's finding of lack of diligence could not be faulted.
The Court held that the appellant placed blame on its erstwhile advocates without disclosing any action it took after learning judgment had been entered. A diligent litigant would have inquired of Ambwere TS & Associates whether appearance and a reply had been filed. No confirmation from that firm existed. The documents were also pleadings, not evidence, and case-management issues should have been raised with the trial court. The application therefore failed under rule 33(1)(a).
Conditions for interference with an exercise of judicial discretion on appeal
An appellant against a discretionary decision must show an error of law or principle, irrelevant or omitted relevant considerations, or that the decision is plainly wrong; none was established.
Relying on Apungu Arthur Kibira, Kacem v Bashir, Price v Hilder and United India Insurance, the Court restated the stricter criteria for appeals against discretionary decisions. It found that the learned Judge made no error of law, did not misapprehend the facts, took into account the correct considerations, and was not plainly wrong in finding lack of due diligence. The appeal therefore had no merit.
Character of documents filed after judgment in a review application
The memorandum of appearance and statement of reply were essentially pleadings, not evidence, and could not justify a review on account of fresh evidence; doubts about their filing and non-service were administrative matters for the trial court.
The learned Judge had found that, absent certification or correspondence with the court, the fact of the documents' filing was doubtful, they were never served on the respondent, and their validity was a case-management matter for the trial court. The Court of Appeal agreed with the finding that no due diligence was exhibited and that the documents, being pleadings, could not constitute new and important matter or evidence for review.
Legal principles established
#- Before a review is allowed on the ground of discovery of new evidence, the applicant must prove that he acted with due diligence and that the evidence was not within his knowledge or could not have been produced at the time of the decree.
- Blaming one's advocate is not, of itself, sufficient: while a mistake of counsel may be excusable, where it is accompanied by the litigant's carelessness and inactivity, a court's refusal to exercise discretion in the litigant's favour cannot be impugned.
- The Court of Appeal will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong.
- Review cannot be used to supplement evidence or introduce new evidence that was in fact available all along; the applicant must show due diligence and that the evidence was not within his knowledge.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Mombasa
- Mombasa ELRC Appeal No. 30 of 2020 (ruling of 11th June 2021 on review application dated 28th April 2021)
- Jurisdiction invoked
- Second appeal from the Employment and Labour Relations Court (the judgment does not invoke a specific constitutional or statutory jurisdictional provision)
Relief refused
#Allowance of the appeal and setting aside of the ruling and order of 11th June 2021 dismissing the appellant's Notice of Motion for review
No due diligence was exhibited by the appellant and the learned Judge's exercise of discretion was not shown to be erroneous under any of the established grounds for interference
Costs of the appeal and costs in the court below to the appellant
Appeal dismissed with costs to the respondent
Costs
Appeal dismissed with costs to the 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 exercise of due diligence on the part of an applicant seeking review on the ground of discovery of new and important matter or evidence may well be the determining factor in such applications. The applicant ought to explain to the court whether any steps which are ordinarily expected of a diligent litigant keen to monitor the progress of its case were taken in the matter.
it is not enough for a party in litigation to simply blame the advocate on record for all manner of transgressions in the conduct of the litigation and that, while the mistake of counsel is excusable if accompanied by a litigant’s carelessness and inactivity, then the refusal by the court to exercise discretion in favour of such a party cannot be impugned
Before a review is allowed on the ground of discovery of new evidence, it must be proved that the applicant had acted with due diligence and the existence of the evidence was not within his knowledge
Consequently, we dismiss this appeal with costs.
We are not convinced that the learned Judge misdirected himself in law; that he misapprehended the facts; that he took into account considerations of which he should not have taken account; that he failed to take account of considerations of which he should have taken account; or that his decision, albeit a discretionary one, is plainly wrong.
Issues in the judgment
#The judgment is internally inconsistent on whether the appellant had in-house counsel: paragraph 19 records the appellant's affidavit as stating it had no in-house counsel, while paragraph 4 records the learned Judge's finding that the appeal was handled by advocates and in-house counsel.
The body of the judgment never states the parties' names; the case title and the identity of the appellant and respondent must be inferred, as the judgment refers only to 'the appellant' and 'the respondent'.
Paragraph numbering in the judgment is irregular: the quoted extract is labelled '1.' but appears after paragraph 18 and reads as the continuation of that paragraph.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ondiek (Suing as the Administrator/Legal Representative of the Estate of Joel Ondiek Alwala) v Onyango (Sued as the Administrator/Legal Representative of the Estate of Charles Onyango Alwala) & 2 others (Environment and Land Appeal E065 of 2021) [2025] KEELC 8476 (KLR)[2025] KEELC 8476 (KLR)4 Dec 2025
Cite this brief
#Cite this brief
Caselaw, "Unigroup Transporters Limited v Mwasame (Civil Appeal E088 of 2021) [2024] KECA 567 (KLR)", Case Analysis (2024). Civil Appeal (Mombasa) — appeal against the ruling of B. Ongaya, J. in Mombasa ELRC Appeal No. 30 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/567/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.