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ELCDismissedNot stated in the judgment· [2018] KEELC 1954 (KLR)

Mohamed Ashif Kassam v Mahbub Kassam Abdulgani Tobaria & another [2018] KEELC 1954 (KLR)

Environment and Land Court
30 August 2018
KBK. BOR
439 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a request to reopen a concluded case because the 'new' evidence was actually available all along, with costs awarded against the applicant.

What this practically means

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Executive summary

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The 1st Defendant applied for review of the court's judgment delivered on 9/11/2017, claiming discovery of new material facts and evidence - receipts evidencing payments in respect of the Suit Property - which he said he only learnt of in January 2018 when visiting his former advocate's offices. He also asked the court to correct an alleged arithmetic error to reflect that he had paid Kshs. 2,235,809.00 towards a joint debt of Kshs. 3,600,000.00. The Plaintiff opposed, showing that the receipts had been produced at the hearing, that the 1st Defendant was represented by counsel, and that the Defendant had written on 13/12/2017 proposing an out-of-court settlement, indicating awareness of the judgment earlier than claimed. The court reiterated that review lies only where new and important matter or evidence, not discoverable with due diligence before the decree, is produced. The deposit slips had been produced at the hearing and the receipts dated back to 2008, so no due diligence deficiency was shown. Admitting the evidence on review would work an injustice to the Plaintiff, who would lose the chance to test its credibility. The application dated 26/01/2018 was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the new evidence relied on qualifies for review

Holding

The application fails because the evidence was neither new nor unavailable with due diligence.

Reasoning

The cash deposit slips were already produced at the hearing, and the receipts from Farouk Adam & Company Advocates bear dates in 2008. The 1st Defendant, who was represented by counsel, did not demonstrate that the receipts are new or that due diligence could not have secured their production at the hearing. Admitting them on review would deprive the Plaintiff of the opportunity to test the credibility of the evidence, working an injustice.

p. 2

Legal principles established

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  • A court may review an order or decree where an aggrieved party applies on the discovery of new and important matter or evidence which, after due diligence, was not within his knowledge and could not be produced when the decree was passed.
  • Review cannot be used to introduce evidence that was available or adducible at the hearing, as this would work an injustice to the opposing party.

Court orders

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  1. 1.The application dated 26/01/2018 is dismissed with costs to the Plaintiff
Jurisdiction invoked
Review jurisdiction under the Civil Procedure Act/Rules (review of judgment on discovery of new and important matter or evidence)

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, "Mohamed Ashif Kassam v Mahbub Kassam Abdulgani Tobaria & another [2018] KEELC 1954 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1954/eng@2018-08-30

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