Saka Developers Limited v Mary Aoko Omondi [2017] KEELC 1530 (KLR)
The bottom line
#A Kenyan court confirmed you cannot revive a lost case with evidence you had all along; file everything at the hearing or face the consequences.
What this practically means
#Executive summary
#Key legal issues
#Whether a notice of appeal bars an application for review
A notice of appeal does not preclude an application for review so long as no record of appeal has been filed; but the party must choose between the two remedies and cannot relitigate decided issues.
The court reasoned that an appeal is only actualized by filing a record of appeal and paying the requisite court fees. Since the applicant had only filed a notice of appeal on 22.12.2016 and not a record of appeal, review remained open. However, review is only available where the issue raised cannot be raised on appeal because the evidence was not adduced, and not for relitigating decided matters.
Whether non-production of the tenancy agreement dated 7.2.2014 amounts to a ground for review
No. Evidence readily available but not produced at the hearing is not a ground for review, and the agreement was not material since the respondent took possession in 1988, approximately 26 years before the agreement.
The court held that section 80's 'any sufficient reason' must be read with the specific grounds in the provision. The applicant had the tenancy agreement in its possession and could have produced it at the hearing. In any event, the agreement could not have altered the outcome because the defendant's possession dated from 1988, long predating the 2014 agreement.
Whether the alleged conflict of interest of the applicant's former advocate constitutes a sufficient reason for review
No. The alleged conflict of interest between the plaintiff and its advocate is not a sufficient reason for review.
The applicant alleged its former advocate, Mwinamo Lugonzo & Company Advocates, who drew the tenancy agreement, suppressed crucial evidence due to conflicts of interest contrary to Rule 9 of the Advocates' Practice Rules. The court found this allegation insufficient to warrant review, noting the respondent's point that the advocate's potential status as a witness was known to the plaintiff before the hearing.
Legal principles established
#- A notice of appeal does not preclude a party from filing an application for review so long as no record of appeal has been filed
- Failure to produce evidence which was readily available at the hearing is not a ground for review
- A party must elect between review and appeal, and review is unavailable for relitigating matters already decided
Court orders
#- 1.The application for review is dismissed
- 2.Costs to the respondent/decree holder
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saka Developers Limited v Mary Aoko Omondi [2017] KEELC 1530 (KLR)", Case Analysis (2017). ELC Application for Review (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1530/eng@2017-08-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.