[2018] KEELC 1954 (KLR)
The court found that the receipts and payment evidence the 1st Defendant sought to introduce were not new, as the cash deposit slips had already been produced at the hearing and the receipts dated back to 2008. The 1st Defendant failed to demonstrate that, with due diligence, he could not have produced these...
Source-derived case information.
- Citation
- [2018] KEELC 1954 (KLR)
- Parties
- Plaintiff: Mohamed Ashif Kassam; Defendant: Mahbub Kassam Abdulgani Tobaria; Defendant: Sheinaz Mehboob Kassam Tobaria
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 273 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Review/vary Judgment
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- AK Bor
- Legal Topics
- Review of Judgment, Discovery of New Evidence, Admissibility of Evidence, Land Debt Settlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Ashif Kassam
Plaintiff
Mahbub Kassam Abdulgani Tobaria
Defendant
Sheinaz Mehboob Kassam Tobaria
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Review/vary Judgment
Legal Issues
- 1 Whether the 1st Defendant has met the threshold for review of judgment based on discovery of new and important evidence.
- 2 Whether the receipts and payment evidence sought to be introduced are new and could not have been produced at the hearing with due diligence.
- 3 Whether correcting the judgment as sought would cause injustice to the Plaintiff.
Ratio Decidendi
The court found that the receipts and payment evidence the 1st Defendant sought to introduce were not new, as the cash deposit slips had already been produced at the hearing and the receipts dated back to 2008. The 1st Defendant failed to demonstrate that, with due diligence, he could not have produced these documents at the original hearing. The court held that granting the review would prejudice the Plaintiff, who would be denied the opportunity to challenge the credibility of the evidence in the proper forum. Consequently, the application did not meet the threshold for review under the Civil Procedure Rules, and the court dismissed it with costs to the Plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application dated 26/01/2018 is dismissed with costs to the Plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
E.L.C. CASE NO. 273 OF 2010
MOHAMED ASHIF KASSAM.....................................................PLAINTIFF
VERSUS
MAHBUB KASSAM ABDULGANI TOBARIA..............1ST DEFENDANT
SHEINAZ MEHBOOB KASSAM TOBARIA................2ND DEFENDANT
RULING
The 1st Defendant seeks to vary the judgement of this court delivered on 9/11/2017 on the ground that there was discovery of new material facts and evidence that was not within the Defendant’s knowledge or attention which affects the judgement as delivered.
The 1st Defendant claimed that he came to learn of the judgement in this case in January 2018 when he visited the offices of his former advocate. He deponed in the supporting affidavit that some receipts evidencing some payments made in respect of the Suit Property were not produced in court. He attached copies of the receipts to the application.
The Plaintiff opposed the application. He argued that the receipts the 1st Defendant wishes to introduce were part of the documents he produced at the hearing and that he was represented by counsel at the hearing. He urged the court to dismiss the application with costs. He annexed a copy of a letter showing that the 1st Defendant wrote to the Plaintiff’s advocate on 13/12/2017 proposing to settle the matter out of court.
During the highlighting of submissions, the 1st Defendant’s advocate urged the court to correct what he termed as an arithmetic error to show that the 1st Defendant paid a total sum of Kshs. 2,235,809. 00 in respect of the total debt of Kshs. 3,600,000. 00 which he owed jointly with the Plaintiff.
The court may review an order or decree where an aggrieved party applies on the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge and which he could not produce at the time the decree was passed. The cash deposit slips the 1st Defendant wishes to introduce were produced at the hearing. The receipts issued by Farouk Adam & Company Advocates he seeks to adduce in evidence bear dates in 2008. He has not shown that these receipts are new and that with the exercise of due diligence he could not have produced them at the hearing. Reviewing the judgement to correct the judgement as sought will work an injustice to the Plaintiff who will not have an opportunity to test the credibility of the evidence as would have happened if this evidence had been properly adduced at the hearing.
The court finds no merit in the application dated 26/01/2018. It is dismissed with costs to the Plaintiff.
Dated and delivered at Nairobi this 30th day of August 2018.
K. BOR
JUDGE
In the presence of: -
Ms. Athman holding brief for Mr. Khan for the Plaintiff
Mr. Owino holding brief for Mr. Owino for the 1st Defendant
Mr. V. Owuor- Court