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ELCDismissedNot stated in the judgment (arising from an appeal decided 16th February, 2018)· [2018] KEELC 617 (KLR)

Leonard Kimeu Mwanthi v Francis Nunguri Imanene & another [2018] KEELC 617 (KLR)

Environment and Land Court of Kenya
14 November 2018
2,342 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to revive a dismissed appeal, ruling that new evidence cannot be smuggled in through review after judgment has been delivered.

What this practically means

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Executive summary

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By a Notice of Motion dated 16th March, 2018 under Order 45 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 80, 1A, 1B, 3 and 3A of the Civil Procedure Act, the applicant sought stay of execution of the judgment of 16th February, 2018 dismissing his appeal from the Business Premises Rent Tribunal, together with review and setting aside of that judgment and a reference to the Chief Justice for a two-judge bench. The applicant contended that the court had relied on the wrong (original) Memorandum of Appeal dated 2/11/93 instead of the amended Memorandum of Appeal dated 11/11/2015, constituting an error apparent on the face of the record, and that new evidence in the supplementary record of appeal showed the appellant was not the legal tenant. The respondent objected that the decree was not annexed, that the appeal having been dismissed there was nothing to stay, and that the issues raised had already been determined. The court dismissed the preliminary objection, following the overriding objective line of authority including Stephen Boro Gitiha and Abdullahi Mohamed. On the merits it held that the judgment of 16th February, 2018 had deliberately declined to consider the amended Memorandum of Appeal and supplementary record because they introduced new evidence never canvassed or tested by cross-examination before the tribunal - a new cause of action which could not be reintroduced by review. The request for a two-judge bench was refused as coming too late, since appeals from the tribunal are heard by a single judge. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether failure to annex the decree renders the review application incompetent

Holding

The preliminary objection failed; procedural technicalities yield to substantive justice under the overriding objective

Reasoning

The court adopted the reasoning in Stephen Boro Gitiha and Abdullahi Mohamed that the overriding objective overshadows technicalities, and that an application for review is not fatally defective merely because a copy of the decree sought to be reviewed was not annexed. The objection was dismissed with no order as to costs.

p. 2
02

Whether the court's reliance on the original rather than the amended Memorandum of Appeal was an error apparent on the face of the record justifying review

Holding

No error apparent; the judgment expressly gave reasons for declining to consider the amended Memorandum of Appeal and supplementary record of appeal

Reasoning

The court found that the judgment of 16th February, 2018 had deliberately declined to consider the amended Memorandum of Appeal and supplementary record because they raised new issues never canvassed at the trial and not subjected to cross-examination. Those matters could not be reintroduced through a review, and the issues raised were not new.

p. 2
03

Whether new evidence may be introduced at the appellate or review stage

Holding

Evidence not tendered before the trial court forms no part of the record, and attempts to introduce it amount to a new cause of action

Reasoning

Relying on Simani v Magotswe, the court held that documents not admitted in evidence do not form part of the record of the suit. The proposed new evidence, including that the appellant was not the legal tenant, was not canvassed before the tribunal and could not be admitted by way of review.

p. 2
04

Whether the matter should be referred to the Chief Justice for a two-judge bench

Holding

The request came too late; appeals from the Business Premises Rent Tribunal are heard by a single judge

Reasoning

The court held that an application for a bench of two judges must be made before the appeal is heard. Since the appeal had already been heard and determined, and the governing provision requires a single judge, the request lacked basis and merit.

p. 3

Legal principles established

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  • An appeal from the Business Premises Rent Tribunal is heard by a single judge, and a request for a two-judge bench must be made before the appeal is heard, not after judgment
  • Leave to amend a memorandum of appeal and file a supplementary record does not extend to introducing new evidence that was not canvassed before the trial court
  • Failure to annex the decree or order sought to be reviewed does not render an application for review fatally defective where the overriding objective and substantive justice favour hearing it

Court orders

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  1. 1.Notice of Preliminary Objection dated 10th April, 2018 dismissed with no order as to costs
  2. 2.Application dated 16th March, 2018 dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 45; Order 51 Rule 1
  • Civil Procedure ActSections 80(b), (c), 1A, 1B, 3 and 3A
  • Constitution of Kenya 2010Article 159
  • Civil Procedure RulesOrder XIII rule 3 (2)

Cases cited (4)

  • Abdullahi Mohamed –vs- Mohammud Kahiye [2015] eKLR
    [2015] eKLR
  • Stephen Boro Gitiha –vs- Family Finance Building Society & 3 Others
    Civil Appeal No. 263/2009 (Nairobi)
  • Simani Vs Magotswe (1989) KLR
    (1989) KLR 620
  • Musiara Ltd vs Ntimama
    (2004) 2 KLR 172
On appeal from
Business Premises Rent Tribunal
Jurisdiction invoked
Appellate jurisdiction over the Business Premises Rent Tribunal; application under Order 45 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act

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, "Leonard Kimeu Mwanthi v Francis Nunguri Imanene & another [2018] KEELC 617 (KLR)", Case Analysis (2018). Not stated in the judgment (arising from an appeal decided 16th February, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/617/eng@2018-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.