Daniel Luwambi & 2 others v Penguin Holdings Limited [2017] KEELC 2320 (KLR)
The bottom line
#Kenya's High Court ruled that claiming someone hid facts is not a valid reason to have a court decision reviewed - review applications must meet strict legal grounds.
What this practically means
#Executive summary
#Key legal issues
#Whether concealment or material non-disclosure of facts constitutes a ground for review under Order 45
It does not; the jurisdiction under Order 45 is restricted to discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and non-disclosure is not among them
The court examined Order 45 of the Civil Procedure Rules and identified its three exhaustive grounds for review. It found that the question of non-disclosure or concealment of material facts does not fall within those grounds, and that mere allegations of non-disclosure against the respondents could not suffice as a basis for review. The ground therefore failed.
Whether the alleged new and important matter or evidence warranted review
No; the applicant failed to show when the evidence came to its knowledge or that it could not have been obtained with due diligence, and the evidence would not have changed the ruling
The applicant relied on information from its advocates without showing when they learnt of the Mombasa HCCC No.328 of 2010 (OS) decree. The court held the applicant had not demonstrated the evidence was not within its knowledge when the order was made, and further that the alleged new matter related to the subordinate court proceedings rather than the judge's ruling and would not have altered the outcome.
Whether a judge of concurrent jurisdiction may review discretionary orders issued by a peer judge
No; such orders are incapable of interference on review, as doing so would be pretending to sit on appeal against the order of a peer judge
The court, applying the Court of Appeal decision in National Bank of Kenya Ltd v Ndungu Njau and Duffus P's dictum in Patel v E.A. Cargo Handling Services Ltd, held that the learned judge (Tuiyott J) had exercised his discretion judicially on fully canvassed matters. Review would reverse orders already executed and effectively convert the review jurisdiction into an appellate one, which is impermissible.
Legal principles established
#- Non-disclosure or concealment of material fact is not a ground for review under Order 45 of the Civil Procedure Rules
- A judge of concurrent jurisdiction cannot review discretionary orders made by a peer judge, as that would amount to sitting in appeal
- An applicant for review must show when the new and important matter came to its knowledge and that it could not, with due diligence, have been produced when the order was made
- A wrong conclusion of law is a ground for appeal, not for review by the same court
Court orders
#- 1.The application dated 5th April 2013 is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Chief Magistrate's Court at Mombasa
- Mombasa RMCC No.2524 of 2011
- Jurisdiction invoked
- Order 45 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Luwambi & 2 others v Penguin Holdings Limited [2017] KEELC 2320 (KLR)", Case Analysis (2017). Mombasa HCCC No.328 of 2010 referred context; Notice of Motion dated 5th April 2013 in Mombasa RMCC No.2524 of 2011 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2320/eng@2017-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.