[2024] KEBPRT 125 (KLR)

Chege & another v Nganga (Tribunal Case E616 of 2021) [2024] KEBPRT 125 (KLR) (Civ) (23 January 2024) (Ruling)

Neutral citation: [2024] KEBPRT 125 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case E616 of 2021

P May, Member

January 23, 2024

Between

Joyce Wanjiru Chege

1st Applicant

Simon Kamau Chege

2nd Applicant

and

Joseph Kagumu Nganga

Respondent

Ruling

1. The application before me is the landlord’s notice of motion dated 30th March, 2023. The application sought for orders of review against the ruling delivered on 30th January, 2023. The gist of the application is that the applicants had discovered fresh evidence which if the Tribunal had considered, it would have arrived at a different outcome. The new evidence includes a tenancy agreement and a letter from the chief.

2. The application was opposed through the replying affidavit sworn by the respondent. The respondent maintained that the applicants were strangers to him and that the application was an attempt by the applicants to reargue their previous application. He therefore urged the tribunal to dismiss the application with costs.

3. The parties elected to canvass the application by way of written submissions. The parties have filed their submissions in support of their respective positions. I have considered the same and would proceed as follows:

4. Order 45(1) of the Civil Procedure Rules, 2010 provide the conditions under which a court can allow an application for review. The Court of Appeal in the case of Pancras T. Swai v Kenya Breweries Limited [2014]eKLR reiterated the conditions set by Order 45 and held that for an applicant to succeed in an application for review, he must establish to the satisfaction of the court any one of the following three main grounds: -i.That there is discovery of new and important evidence which was not available to the Applicant when the Judgment or order was passed despite having exercised due diligence; orii.That there was a mistake or error apparent on the face of the record; oriii.That sufficient reasons exist to warrant the review sought.iv.In addition to proving the existence of the above grounds, the Applicant must also demonstrate that the application was filed without unreasonable delay.

5. From the above conditions, it is clear that the prayer for review in the instant application is premised on the first condition. In the case of Turbo Highway Eldoret Limited v Synergy Industrial Credit Limited [2016]eKLR Sewe J. cited the case of Rose Kaiza v Angelo Mpanjuiza [2009]eKLR, where the Court of Appeal considered an application for review on the ground of new evidence and held that:-“Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a 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 any new and important matter which was not within the knowledge of the party when the decree was made.”

6. It is therefore clear that the discovery ought to be of new and important evidence which after due diligence was not within the knowledge of the party or could not have been produced when the decree was being made.

7. In the case of D. J. Lowe & Company Ltd v Bonquo Indosuez, Nairobi Civil Application No.217 of 1998, the Court of Appeal sounded a caution in such applications and stated that:-“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.”

8. Thus, in an application for review based on discovery of new and important evidence, the Tribunal must exercise caution to prevent a party against whom a decision has been entered from procuring new evidence so as to strengthen or change the complexion of the case.

9. From the above authorities, to qualify to be new evidence so as to fall within the ambit of Order 45 Rule 1 of the Civil Procedure Rules, the new evidence must be of such a nature that it could not have been within the knowledge of the applicant despite the exercise of due diligence.

10. In my view and drawing guidance from the above decisions from the superior courts, the application and conduct of the applicants here is that of negligence and not one of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within their knowledge. A tenancy agreement is a primary document in any tenancy related dispute and ought to have been adduced at the first instance. The applicants have not taken any steps to explain this oversight. They have proceeded to argue on the perceived weight of the new evidence. This kind of conduct should not be allowed. In our adversarial system a party must prepare adequately for their case and timeously submit all the evidence that they seek to rely on. A lease document prepared and signed 24 years ago cannot be allowed to pass as new evidence unless a plausible explanation is given on why it could not have been adduced at the first instance.

11. The upshot of the above is that the application dated 30th March, 2023 is unmerited and dismissed with costs assessed at Kshs. 30,000 awarded to the respondent.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JANUARY 2024. HON. PATRICIA MAYMEMBER23. 01. 2024Delivered in the absence of the parties.