Chrispus Chengo Masha v African Provident Limited T/A Real K. Ltd
The bottom line
#New evidence must be truly unexpected; you cannot use the review process to re-argue a case you already lost.
What this practically means
#Executive summary
#Key legal issues
#Whether the receipts of loan repayment constitute new and important evidence for review
No - the receipts were a fact in dispute before the trial court and their genuineness falls within the trial court's jurisdiction; the burden of demonstrating entitlement to review was not discharged
The court held that the receipts, being a matter already in dispute before the trial court, could not qualify as newly discovered evidence. The applicant's own affidavit showed he had filed documentary evidence but omitted the receipts through oversight, which does not satisfy the due-diligence test under Order 45. The respondent also contested the authenticity and legality of the receipts.
Whether review may be used as a back door to re-argue a lost case
No - review jurisdiction is not for re-agitating arguments already considered or for unsuccessful litigants to re-argue their cases
Relying on Autodesk Inc v Dyason No. 2 and Sow Chandra Kante v Sheikh Habib, the court held that review is a serious step reserved for glaring omission or patent mistake, not for repetition of old arguments or filling gaps in evidence. The applicant's plea was characterised as an anticipatory re-adjudication of issues already before the trial court.
Legal principles established
#- Review jurisdiction requires discovery of new and important matter or evidence which was not within the knowledge or reach of the applicant at the time of the decree, and cannot be used to re-agitate arguments already considered
- Applications for review on the ground of fresh evidence must be treated with caution; the applicant must show due diligence and lack of knowledge of the evidence at trial
Court orders
#- 1.The notice of motion dated 24.8.2020 seeking review of the judgment of Mativo J dated 21.4.2020 was dismissed with costs to the respondent
- Jurisdiction invoked
- Order 45 Rules 1 & 2 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 80 of the Civil Procedure Act (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chrispus Chengo Masha v African Provident Limited T/A Real K. Ltd", Case Analysis (2020). Notice of Motion dated 24.8.2020 (High Court, Malindi). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.