Singh t/a Trilok Construction v Sucham Investment Limited (Civil Appeal E070 of 2021) [2024] KECA 568 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a Kshs 7.9 million judgment against a resort owner, ruling that review cannot be used to sneak evidence back into a decided case.
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 appeal was incompetent for having been filed and served outside the prescribed periods under rules 82(1) and 90 of the Court of Appeal Rules and for an undated and unsigned Notice of Appeal
- 2.Whether the learned Judge erred in reviewing her judgment of 2nd June 2020 and varying the decretal sum from Kshs 7,947,089.08 to Kshs 5,416,141.07 after rejecting the application to introduce additional evidence
- 3.Whether the deductions of Kshs 2,530,948/= on the face of the final certificate amounted to an error apparent on the face of the record justifying review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules
Key legal issues
#Competency of the appeal raised in submissions rather than by formal application
The competency objection failed because it was raised casually in submissions rather than by Notice of Motion supported by affidavit as required by rule 44 of the Court of Appeal Rules.
Rule 44 requires all applications under the Rules to be made by Notice of Motion supported by affidavit, which advances the rules of natural justice. Raising a serious application to strike out an appeal in submissions deprives the other side of the opportunity to be heard on the issue. Accordingly the objections based on rules 82(1) and 90 and the alleged undated, unsigned Notice of Appeal could not be sustained.
Scope of review for error apparent on the face of the record
The question of the parties' intention, the need to account for expenses, and the deductions to be made before payment were not errors apparent on the face of the record; they required reasoning on points admitting of two opinions and possibly further evidence, and could not sustain a review.
The Court restated the authorities that an error apparent on the face of the record must strike one on mere looking at the record, without a long-drawn process of reasoning, and where two opinions are not conceivable. The issue of the parties' intention, the need for the appellant to account for expenses, and the deductions on the final certificate did not meet that threshold. They may well have required further evidence which the Judge had already found inadmissible, yet she proceeded to do the very thing she had avoided.
Whether the learned Judge erred in reviewing her judgment
Yes. Having disallowed the prayer to admit additional evidence, the Judge nonetheless relied on the deductions evidenced by documents she had refused to admit, undermining her own ruling; the review was erroneous and the ruling was set aside.
The Court noted the internal inconsistency: the Judge found that admitting the further evidence would make it impossible for the appellant to respond effectively, yet proceeded to rely on the deductions to vary the decretal sum. Review is not an appeal in disguise and cannot be used to substitute a view or re-assess evidence. The review therefore had to be set aside and the original judgment of 2nd June 2020 reinstated.
Legal principles established
#- An error apparent on the face of the record justifying review must stare one in the face and be correctable on mere inspection without a long-drawn process of reasoning or where two opinions are conceivable; issues requiring further evidence or weighing of intentions are not such errors.
- A court may not use review to substitute its own view or re-assess evidence; review is strictly confined to correcting a mistake and cannot operate as an appeal in disguise.
- An application for striking out an appeal made casually in written submissions rather than by Notice of Motion supported by affidavit, as required by rule 44 of the Court of Appeal Rules, cannot be sustained.
Court orders
#- 1.Appeal allowed
- 2.Ruling of the High Court dated 29th March 2021 set aside
- 3.Judgment of the High Court delivered on 2nd June 2020 reinstated (thereby restoring the decretal sum of Kshs 7,947,089.08 and the direction that each party bear their own costs in that judgment)
- 4.Costs of the appeal awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- High Court Civil Appeal No 153 of 2019 (arising from CMCC No. 1524 of 2017)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court sitting on appeal from the Chief Magistrate's Court; second appeal confined to matters of law (implicitly under the Court of Appeal Act and the Civil Procedure Act)
Relief refused
#Respondent's application to strike out the appeal as incompetent
A serious application for striking out an appeal made casually in submissions by way of grounds of opposition deprives the other side of an opportunity to be heard; applications must be brought by Notice of Motion supported by affidavit under rule 44
Respondent's prayer to dismiss the appeal with costs
The Court found the learned Judge erred in reviewing her judgment; the appeal was allowed instead
Costs
Costs of the appeal awarded to the appellant. The ruling set aside had directed each party to bear their own costs; reinstating the 2nd June 2020 judgment restores its order that no costs be awarded to either party at that stage.
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.
Accordingly, we allow the appeal, set aside the ruling of the High Court dated 29th March 2021 and hereby reinstate the judgement delivered on 2nd June 2020.
an error apparent on the face of record must be such an error, which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions.
The power of review can be exercised for correction of a mistake and not to substitute a view. Such powers should be exercised within the limits of the statute dealing with the exercise of power.
In an application for review, it is particularly necessary that the application should disclose in the body of the notice of motion the ground or grounds on which the review is being sought.
pursuant to rule 44 of the Rules, save as otherwise provided thereunder, all applications are to be made by Notice of Motion supported by afidavit. This is meant to advance the rules of natural justice.
the learned Judge having found that by admitting further evidence it was likely to make it impossible for the appellant to respond efiectively proceeded to do the very same thing that she had earlier on avoided when she reviewed the judgement.
Issues in the judgment
#The judgment is internally inconsistent as to the interest relied on for review: the Judge relied on the deductions on the final certificate while having declined to admit the very documents evidencing them; the Court of Appeal flagged this contradiction
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.
- Mjanaheri Farm Liminted v China Road & Bridge Corporation & another (Civil Appeal E038 of 2022) [2025] KECA 771 (KLR)[2025] KECA 771 (KLR)9 May 2025followed
Cite this brief
#Cite this brief
Caselaw, "Singh t/a Trilok Construction v Sucham Investment Limited (Civil Appeal E070 of 2021) [2024] KECA 568 (KLR)", Case Analysis (2024). Civil Appeal (Mombasa), judgment delivered 24th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/568/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.