Peter Chege Kanja & 6 others v China Wu Yi Limited [2018] KEELRC 2179 (KLR)
The bottom line
#China Wu Yi's attempt to dodge a Kshs 11 million security deposit failed because courts punish parties who hide earlier dismissed applications or recycle old evidence as 'new'.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's bank statement constituted new evidence justifying review of the security-deposit condition
The Court held that the bank statement did not qualify as new evidence because it was available to the Respondent when it filed the earlier application to vary the stay condition, and seeking to introduce it later was an afterthought. The review application was dismissed with costs.
The Respondent had filed an application to vary the stay condition on 13 March 2018 and knew the threshold it had to satisfy at that time. If the bank statement was material to demonstrate its liquidity, that evidence was then available. Introducing it only afterwards, by way of review, failed the due-diligence requirement for new evidence and could not sustain a review of the orders of 15 March 2018.
Whether the Respondent's application dated 8 March 2018 was an abuse of the Court process
Yes. The Respondent had already obtained a ruling on 10 November 2017 dismissing its application for stay of execution pending appeal, and in moving the Court again on 9 March 2018 it made no disclosure of that dismissal. The Court struck out the application on its own motion to protect its process from abuse.
The Respondent knew it had earlier sought stay of execution pending appeal and that the Court had dismissed that application with costs after a hearing on the merits. Instead of weighing its options, perhaps taking advantage of the transfer of the Judge who had handled the file, it filed a fresh application without disclosing the prior dismissal. Such non-disclosure rendered the fresh application an abuse of process warranting striking out suo motu.
Whether costs should be personally borne by the Respondent's advocate
The Court ordered the advocate who filed the application of 9 March 2018 to personally bear the costs of that application.
Having found the application to be an abuse of the Court process instituted without disclosure of a prior dismissed application, the Court chose to visit the consequences on the advocate who filed it, ordering personal costs as a sanction beyond the striking out of the application itself.
Legal principles established
#- Evidence is not 'new' for purposes of review where it was available to the party at the material time had due diligence been exercised
- Parties are under a duty to disclose to the Court previous applications between the same parties on the same subject that have been dismissed after a hearing on the merits, and failure to do so amounts to abuse of the Court process
Court orders
#- 1.Dismissal of the Respondent's application dated 21 March 2018 seeking review of the orders issued on 15 March 2018, with costs to the Claimants
- 2.Striking out by the Court on its own motion of the Respondent's application dated 8 March 2018 and filed in Court on 9 March 2018
- 3.The Respondent's advocate who filed the application on 9 March 2018 to personally bear the costs of the application
- 4.Confirmation that the execution which had commenced can proceed unless the Court of Appeal decrees otherwise
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (Employment and Labour Relations Court, established under the Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Chege Kanja & 6 others v China Wu Yi Limited [2018] KEELRC 2179 (KLR)", Case Analysis (2018). Cause No. 24 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2179/eng@2018-04-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.