Mansoft Limited & 2 others v Mutuku John Mutinga [2017] KEELC 1159 (KLR)
The bottom line
#A Kenyan court struck out a rent appeal document that was never part of the original Tribunal record, confirming new evidence can be removed on appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should review its order admitting the supplementary record of appeal
Yes. The court had been misdirected by the Respondent into believing the valuation fees receipt formed part of the BPRT record, whereas the Tribunal's own judgment recorded that the report had not been filed and the fees unpaid. The application was allowed and the supplementary record struck out.
The Tribunal's judgment at paragraph 13 expressly stated that the landlord's valuation report had not been filed and that unless valuation fees were paid the report could not be deemed filed. This contradicted the Respondent's affidavit claim that the report had been paid for and filed before judgment. The receipt dated 28/9/2012 therefore constituted new documentary evidence not part of the BPRT record, admitted under a mistake, and its retention would prejudice the Appellants whose main contention on appeal rests on the report's absence.
Whether the receipt constituted new evidence not before the BPRT
Yes. The receipt dated 28/9/2012 bearing serial number 091348 did not form part of the record before the BPRT.
The Appellants deponed that the receipt does not exist in the BPRT record, and the BPRT's own judgment of 24/5/2013 recorded that the valuation report had not been filed because the fees were unpaid. That contemporaneous finding by the Tribunal outweighed the Respondent's assertion that the report had been filed and paid for, confirming that the receipt was new evidence introduced on appeal.
Legal principles established
#- A court may review its own orders on account of a mistake or error apparent on the face of the record or for other sufficient reason.
- Where a tribunal's own judgment confirms that a valuation report had not been filed and the requisite fees not paid, documents introduced on appeal suggesting otherwise constitute new evidence that may be struck out to avoid prejudice.
Court orders
#- 1.The court reviewed and set aside its order made on 26/4/2017 admitting the supplementary record of appeal
- 2.The supplementary record of appeal is struck out
- 3.The Appellants were awarded the costs of the application
- On appeal from
- Business Premises Rent Tribunal, Nairobi (Chairperson, Honourable Mrs. D. Mwachache)
- Tribunal Cases numbers 286, 287 and 294 of 2011
- Jurisdiction invoked
- Appellate jurisdiction over the Business Premises Rent Tribunal decision (statutory appeal); review jurisdiction invoked under Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mansoft Limited & 2 others v Mutuku John Mutinga [2017] KEELC 1159 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1159/eng@2017-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.