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ELCAllowedNot stated in judgment· [2015] KEELC 480 (KLR)

Charles Owiti Mudunyi & 2 Others v Apollos Kennedy Mwangi [2015] KEELC 480 (KLR)

Environment and Land Court (original suit in which review sought)
19 May 2015
765 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling on a notice of motion dated 2.3.2015 by Ignatius Were Otsyengi seeking review of a judgment delivered on 29.1.2015, in which his claim against the defendant was dismissed after a formal proof hearing (the defendant having neither entered appearance nor filed a defence). The claims of two other plaintiffs had succeeded; only the applicant's claim failed. The applicant, whose motion was unopposed, argued that he had in fact deposited Kshs.220,000 into the defendant's account at Co-operative Bank Nyahururu Branch but had not produced the banking slip at the hearing because he believed the acknowledgement of payment in the sale agreement dated 30.12.2008 made production unnecessary. The court, per E. Obaga J, set out the three Order 45 grounds for review: discovery of new and important evidence, mistake or error apparent on the face of the record, and any other sufficient reason. It held the first ground failed because the banking slip was always within the applicant's knowledge and could have been produced at the hearing, and there was no error apparent on the face of the record. However, upon examining the newly produced banking slip showing the deposit, the court was convinced the purchase price had been paid and found sufficient reason for review. The court reviewed its judgment of 29.1.2015 and allowed the applicant's claim against the defendant with costs.

Key legal issues

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01

Whether the applicant's belated production of the banking slip constituted new and important evidence justifying review

Holding

No - the banking slip was always within the applicant's knowledge and could have been produced at the hearing.

Reasoning

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.

p. 1
02

Whether there was a mistake or error apparent on the face of the record

Holding

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.

Reasoning

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.

p. 1
03

Whether there was any other sufficient reason for review

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Review of the judgment of 29.1.2015 dismissing the applicant's (second plaintiff's) claim
  2. 2.Replacement of that judgment with an order allowing the second plaintiff's claim against the defendant with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45
Jurisdiction invoked
Order 45 of the Civil Procedure Rules (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.