[2022] KEHC 16312 (KLR)

Obunga (Suing through authorized Attorney Joseph Moses Ogola) v Obudi (Civil Appeal 89 of 2019) [2022] KEHC 16312 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16312 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal 89 of 2019

KW Kiarie, J

December 15, 2022

Between

Florence Atieno Obunga (Suing through authorized Attorney Joseph Moses Ogola)

Appellant

and

Lilian A Obudi

Respondent

(Being an Appeal from the ruling in Oyugis Principal Magistrate’s PMCC No. 54 of 2014 by Hon. J.P. Nandi–Principal Magistrate)

Ruling

1. On December 10, 2018 the appellant filed an application for review of judgment dated July 27, 2017. The application was premised on ground that there was discovery of new and important matter or evidence which was not within the appellant’s knowledge and could not be produced at the time when the decree was passed. The learned trial magistrate dismissed the application.

2. The appellant was aggrieved by the said ruling and filed this appeal. She was represented by the firm of GS Okoth & Company Advocates. She raised grounds of appeal as follows:a.That the learned trial magistrate misdirected himself on several matters of law and fact, in that:i.Having stated that in the judgment delivered on the July 26, 2017 that the plaintiff was under a duty to prove from the source of the whether the money was received by the second defendant or was still held in a bank account, his refusal to review the judgment when evidence proving receipt of the money was availed from the bank, was a gross misdirection.ii)The money grams having been sent through electronic transfers bearing the name of the appellant as sender and the name of the respondent as the receiver was on a balance of probability proof that the receiver named received the money.b.The learned trial magistrate erred in law in refusing to review the judgment passed on July 26, 2017. c.The learned trial magistrate erred in law of civil procedure in failing to appreciate the circumstances under which a judgment may be reviewed pursuant to Order 45 Rule 1 (a) of the Civil Procedure Rules.d.The learned trial magistrate erred in law in refusing to review the judgment passed on July 26, 2017 when all evidence of receipt of the money grams sent was availed from some of the commercial banks where the receiver collected the moneys.e.The learned trial magistrate erred in law of practice and procedure in finding that the application is res judicata whereas the first application was for the court to allow the plaintiff to reopen his case and adduce evidence, whereas the instant application is for review.f.The learned trial magistrate erred in law in failing to comprehend the provisions of section 7 of the Civil Procedure Act, 2010 together with the explanations made thereunder.g.That the learned trial magistrate erred in law of evidence in deciding the case against the weight of evidence.h.The learned trial magistrate erred in law in not appreciating the definition of evidence or what constitutes evidence in the legal sense.i.The learned trial magistrate erred in law in failing to appreciate the role and purpose of reviewing a judgment.

3. The appeal was opposed by the respondent through the firm of Bana & Company Advocates who contended that it lacked merits.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co Ltd. [1965] EA 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. Order 45 Rule 2 provides:1. An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed.

6. According to the appellant in her affidavit of January 23, 2017, he had established that all the monies had been paid to the respondent except that the KCB required a court order to produce evidence of the same. He repeated the same contention in his affidavit dated February 9, 2018. Were these facts new? The Court of Appeal while addressing the issue of new evidence in the case ofRose Kaiza v Angelo Mpanju Kaiza [2009] eKLR stated:The construction and application of that provision has been discussed in many previous decisions but we shall take it from the commentary by Mulla on similar provisions of the Indian Civil Procedure Code, 15th Edition at page 2726, thus: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.”

7. The Court of Appeal gave the rationale for the caution in DJ Lowe & Company Limited vs Banque Indosuez [1998] eKLR where stated: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. The facts on which the appellant was seeking to rely on for review of the judgment were within her knowledge before the impugned judgment was delivered. The learned trial magistrate was justified to disallow the application for review.

9. I therefore find that this appeal lacks merit and the same is dismissed with costs.

Delivered and signed at Homa Bay this 15thday of December, 2022KIARIE WAWERU KIARIEJUDGE