Background
1. This is an appeal from the Ruling of the trial Court delivered on 24th April 2023 in the Winam CMCC No. E285 of 2022, where the magistrate dismissed the appellant’s application dated 5 January 2023, seeking a review of the trial court’s orders of 30th December 2022.
2. The background of the matter is that by a plaint dated 19th December 2022, the Respondent herein instituted a suit against the Appellant. Contemporaneously with the plaint, the Respondent filed an application of even date, seeking, among others, an order temporarily restraining the Appellant from disposing of motor vehicle registration number KBF 159H – Toyota Corona, which was the subject of the dispute. Also sought by the Respondent was an order for the release of the subject motor vehicle back to the Respondent (then an applicant).
3. The Respondent’s said application was set for interpartes hearing on 29th December 2022. The Appellant herein, however, did not attend the inter partes hearing despite service. Consequently, the trial court, on the said date, granted an interim order directing the Appellant not to dispose of the subject motor vehicle and return the same to the Respondent.
4. On 5th January 2023, the Appellant lodged an application seeking, in the main, an order for review of the trial court’s order of 29th December 2022, but extracted on 30th December 2022. According to the Appellant, there was discovery of new evidence in the sense that the subject motor vehicle had been disposed of to a third party, and therefore, it was impracticable to comply with the trial court’s order of 30th December 2022.
5. By its Ruling dated 5th April 2023, the trial court dismissed the Applicant’s application for review. The court also issued an order of status quo and directed that the orders of 30th December 2022 to remain in force.
The Appeal
6. Aggrieved by the ruling and order of the trial court, the Appellant preferred an appeal before this court vide a Memorandum of Appeal dated 11th July, 2024, setting out the following grounds of appeal that:
i. That the trial magistrate erred in law and fact in declining to consider, ignoring the plaintiff's application dated 5/1/2023 seeking to review and/or discharge the orders issued on 30/12/2022 on account of discovery of new and material evidence.
ii. That the learned Magistrate erred in law and fact in failing to consider and appreciate that whereas the court orders on 30/12/2022 the court was not notified that the subject motor vehicle had actually been sold to a third party on 14/12/2022 and therefore the substratum of the suit failed.
iii. The learned magistrate failed to consider the evidence tendered that indeed, the suit and the application leading to grant of the impugned orders was filed after the fact.
iv. That the learned Magistrate erred in law and fact in declining to consider, ignoring the plaintiff's application dated 5/1/2023 raised bona fides points law worthy of consideration.
v. That the learned Magistrate erred in law and fact in failing to consider the plaintiff’s submissions and the authorities supplied to court hence an erroneous decision.
7. This appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 12th January 2024, whilst the Respondent’s submissions are dated 5th October 2024.
Appellant’s submissions
8. The appellant submitted that the trial court erred in failing to set aside the said orders for the reason that the appellant had met the threshold to warrant review of the impugned orders. The appellant cited the provisions of Section 80 of the Civil Procedure Act and Order 45 (1) of the Civil Procedure Rules.
9. Citing, among others, the case of Anwar Ali & another vs Monica Muthiu & another (2021) eKLR, the Appellant asserted that the trial court ought to have allowed his application for review on the basis that there was discovery of new evidence that had not been availed to the court. According to the Appellant, the suit motor vehicle had already been sold to a third party on 14th December 2022, way before the Court order of 30th December 2022.
10. The Appellant therefore urged this Court to allow the appeal with costs, and set aside the trial court’s ruling of 5th April, 2023.
Respondent’s submissions
11. On his part, the Respondent supported the trial court’s ruling of 5th April 2024 and urged this Court to uphold the same. The Respondent maintained that the trial court’s ruling dated 5th April 2023 reinforced and reaffirmed the orders issued on 30th December 2022.
12. According to the Respondent, the purported discovery of new evidence and the application to vacate the orders of the Court were pieces of evidence that were manufactured by the Appellant to beat the course of justice. The purported sale was manufactured after the orders of the court on 30th December 2022 had been issued and served upon the appellant.
13. The Respondent maintained that the application for review of the court orders on account of discovery of new evidence by the appellant fell short of the threshold set for such an application. Reliance was placed on among others, the Court of Appeal decision in the case of D. J. Lowe & Company Limited Vs Banque Indosuez[1998]eKLR, where the Court held that where an application for review is based on discovery of fresh evidence, the court must exercise greatest care as it is easy for a party who has lost, to see weak part of his case and the temptation to lay and procure evidencewhich will strengthen that weak part and put a different complexion.
14. The Respondent submitted that the Appellant, having failed to attend court for the inter-partes hearing of 29th December 2022, despite having been duly served, both electronically and physically, did not deserve the court’s protection. The Respondent relied on the case of John Mwangi Muhia & 2 others vs Director of Public Prosecutions & 5 others (2019)eKLR in that regard.
15. The Respondent therefore prayed that the instant appeal be dismissed with costs in his favour.
Analysis and Determination
16. I have carefully considered the appeal herein, the rival submissions, the record of appeal, and the authorities cited by the parties in support of their respective submissions. The issue arising for this Court’s determination is whether the trial court erred in dismissing the appellant’s application for review.
17. The Court’s jurisdiction to entertain an application seeking review is exercised based on Section 80 of the Civil Procedure Act and Order 45 (1) of the Civil Procedure Rules 2010.
18. Section 80 of the Civil Procedure Act gives the court unfettered discretion to review its decision. Section 80 provides as follows: -
“Any person who considers himself aggrieved—
a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
19. Order 45 Rule 1(1) of the Civil Procedure Rules, 2010 sets out the grounds for review and provides as follows: -
“1. (1)Any person considering himself aggrieved—
a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”
20. From the above, it is clear that while Section 80 of the Civil Procedure Act gives the power of review, Order 45 sets out the rules which restricts the grounds for review to the following grounds:
i. Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made, or;
ii. On account of some mistake or error apparent on the face of the record; or
iii. For any other sufficient reason
21. From the record, I note that in its application before the trial court, the Appellant pleaded that its application for review was based on the fact that there was discovery of new and important matter or evidence. The appellant argued that there was discovery of new evidence that was not availed to the trial court when it made its determination of the interim application, resulting in the court’s Orders of 30th December 2022. The new evidence, according to the Appellant, was that the suit motor vehicle had already been sold to a third party way before the ruling delivered on 30th December 2022. The Appellant asserted that the subject motor vehicle was sold on 14th December 2022 before the institution of the suit in the trial court.
22. The Court of Appeal in the case of Rose Kaiza -v- Angelo Mpanju Kaiza C.a. Civil Appeal No 225 of 2008 [2009 eKLR], while discussing the question of “discovery of new and important matter or evidence” as a basis of review application under the Civil Procedure Act and Rules, cited with approval the following passage from Mulla’s Civil Procedure Code 15Th Edition at page 2726 and stated that:
“Before a review is allowed on the discovery of new evidence, it must be established that the Applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the Petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of new and important matter which was not within the knowledge of the party when the decree was made.”
23. Guided by the above decision by the Court of Appeal, it is evident that the “discovery of new and important matter or evidence” as a ground for review is not available to a party who, despite service, failed to attend court. The “new and important” piece of evidence sought to be brought to the attention of the court must be one which was not was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made.
24. In fact Order 45 of the Civil Procedure Rules is clear that an application for review on the ground of discovery of new and important matter can only be granted where the applicant, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made.
25. In the instant case, proceedings from the trial court indicate that the Respondent herein filed an application dated 19th December 2022 under a certificate of urgency seeking, among others, an order that the Appellant herein be restrained from disposing of the suit motor vehicle. The Court certified the application urgent and directed that the application be served upon the Appellant (then a Defendant/Respondent for hearing on 29th December 2022.
26. On 29th December 2022, when the application came up for hearing, the Appellant herein was not in court, neither was it represented. The trial court, having been satisfied that service on the Appellant was duly effected, proceeded and issued interim orders, the subject of this appeal.
27. I have also carefully reviewed the Appellant’s application dated 5th January 2023, in which it sought review of the trial court’s orders, and note that the Appellant made no effort to explain why they did not attend court of 29.12.2022 when the Respondent’s application dated 19th December 2022 was slated for hearing, despite service with the pleadings.
28. The Court of Appeal (Gicheru, Shah & Owuor JJA) in the case of D. J. Lowe & Company Limited Vs Banque Indosuez[1998]eKLR stated as follows on the question of discovery of a “new and important piece of evidence” as a basis of judicial review:
“Where such a review application is based on fact of the discovery of fresh evidence the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing.
In this particular case, the evidence of payment of US Dollars 291,857.34 was easily available to the applicant. Hence, there was no merit in the application for review. In these circumstances, we see no arguable point that the applicant can put forward in the intended appeal. [emphasis added]
29. Just like in the of D. J. Lowe & Company Limited case (supra), the fact that the subject motor vehicle had been sold (if the assertion was indeed true), was easily available to the Appellant and they ought to have easily brought the same to the attention of the trial court on 29th December 2022 when the Respondent’s application dated 19th December 2022 was heard.
30. The Appellant having failed to attend court on 29th December 2022 when the Respondent’s application dated 19th December 2022 was heard, resulting in the issuance by the trial court of its orders of 30.12.2025, I find, as the trial court did, that the Appellant failed to demonstrate that “there was discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made .”
31. The upshot of all the above is that the instant appeal is devoid of any merit. It is accordingly dismissed with costs to the Respondent.
32. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 3RD DAY OF APRIL 2025
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant.