Wayua Mueke & another v Sabethi Kanungui Mulwa & 3 others; Vito Auto Spares Limited (Interested Party) [2020] KEELC 3656 (KLR)
The bottom line
#A Kenyan court refused to overturn a land ownership consent, confirming that unhappiness with a ruling means appealing, not asking the same judge to review it.
What this practically means
#Executive summary
#Key legal issues
#Whether there was discovery of new and important matter or evidence justifying review
No. The alleged 'new evidence' concerning R.M. Matata's alleged lack of instructions and Mr. Kakonzi's lack of capacity was known or available at the time of the earlier hearing and does not meet the Order 45 threshold.
The court found that the question of the 1st Defendant's representation was central to the hearing of the Application dated 30th May, 2014, where viva voce evidence was taken and the 1st Defendant was cross-examined. The 1st Defendant declined to call Mr. Matata as a witness when given the opportunity on 16th March, 2016. The same issues cannot now be repackaged as newly discovered evidence; they were determined in the Ruling of 27th January, 2017.
Whether the application for review was the correct remedy for dissatisfaction with the earlier Ruling
No. Dissatisfaction with the holding that a party is bound by the acts of his advocate is a ground for appeal, not review.
The court held that where an applicant is aggrieved by a decree or order from which an appeal is allowed, the correct avenue is an appeal, not an application for review. Review is confined to discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason. The 1st Defendant's grievance went to the merits of the earlier finding and should have been pursued on appeal.
Whether Mr. Kakonzi signed the consent letter and whether that would constitute new evidence
There was no evidence before the court that Mr. Kakonzi signed the consent letter; mere assertion by Mr. Matata, without a document examiner's report, was insufficient.
The court observed that Mr. Matata's claim to recognise Mr. Kakonzi's signature was unsupported by expert evidence. In any event, the question of the validity of the Notice of Change of Advocates and the consent letter should have been raised when the Application dated 30th May, 2014 was heard, and could not found a review.
Whether the application was res judicata
The court found the issues raised had already been litigated and determined in the Ruling of 27th January, 2017.
The 1st Plaintiff deponed that the issue of the 1st Defendant's legal representation was heard and determined in the Ruling of 27th January, 2017, rendering the present application res judicata. The court's analysis confirms that the representation issue was central to and determined in the earlier application, and the court described the present application as an attempt to have the court sit on its own appeal.
Legal principles established
#- An applicant for review must show discovery of new and important matter or evidence not within his knowledge or which could not with due diligence have been produced when the order was made
- A party aggrieved by a finding that he is bound by the acts of his advocate should appeal rather than seek review
- Matters which could have been raised at the hearing of the original application cannot constitute new matter for review
Court orders
#- 1.The Notice of Motion dated 19th March, 2018 seeking review of the Ruling of 27th January, 2017 is dismissed
- 2.Costs of the Application to the Plaintiffs
- Jurisdiction invoked
- Inherent review jurisdiction under Order 45(1)(a) and (b) of the Civil Procedure Rules and Section 8 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wayua Mueke & another v Sabethi Kanungui Mulwa & 3 others; Vito Auto Spares Limited (Interested Party) [2020] KEELC 3656 (KLR)", Case Analysis (2020). Not stated in the judgment (Machakos; suit commenced by Plaint dated 5th October, 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3656/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.