Charles Owiti Mudunyi & 2 Others v Apollos Kennedy Mwangi [2015] KEELC 480 (KLR)
The bottom line
#A Kenyan court reversed its own earlier judgment because new bank slip evidence proved the buyer had actually paid the purchase price.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's belated production of the banking slip constituted new and important evidence justifying review
No - the banking slip was always within the applicant's knowledge and could have been produced at the hearing.
The court held that evidence is not 'new' for review purposes if it was within the party's knowledge and capable of production at the hearing. The applicant always knew of the banking slip and knew he had to prove his claim, so the first ground of review failed.
Whether there was a mistake or error apparent on the face of the record
No such error existed; the court was not sure at the hearing whether the money had been paid because the banking slip referenced in the agreement was not attached.
The judgment had dismissed the claim because the agreement recited that a banking slip was attached, but none was produced. That was a gap in proof, not an error apparent on the face of the record, so the second ground of review failed.
Whether there was any other sufficient reason for review
Yes - the now-produced banking slip convinced the court that the applicant had paid the purchase price, amounting to sufficient reason to review the judgment.
The court examined the banking in slip newly produced showing a deposit into the defendant's account at Co-operative Bank Nyahururu Branch, made at Kitale. Being convinced of payment, the court found sufficient reason for review and allowed the second plaintiff's claim with costs.
Legal principles established
#- Review lies on the grounds in Order 45 of the Civil Procedure Rules: discovery of new and important evidence, mistake or error apparent on the face of the record, or any other sufficient reason.
- Evidence which was within a party's knowledge and could have been produced at the hearing is not 'new and important evidence' for review.
- A party must prove its claim to the required standard; mere acknowledgement of payment in an agreement is not proof of deposit into an account where the agreement itself refers to an attached banking slip.
Court orders
#- 1.Review of the judgment of 29.1.2015 dismissing the applicant's (second plaintiff's) claim
- 2.Replacement of that judgment with an order allowing the second plaintiff's claim against the defendant with costs
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Owiti Mudunyi & 2 Others v Apollos Kennedy Mwangi [2015] KEELC 480 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/480/eng@2015-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.