Discovery of new evidence

Review is permissible under these grounds if the applicant can show that there has been a discovery of new and important matter of evidence. The applicant must also show under this head that the discovery could not have been made earlier despite the exercise of due diligence on their part. It is important when you make an application under this ground you have to show the court, and usually with a supporting affidavit, that you were not hiding this evidence under the table so that you can use it to have an opportunity to have the case to be looked at again. You would have to show the court that you exercised due diligence and that information you never found it, you did not know about it, it has just come to your attention. This of course implies that if the other side can satisfy the court that this information was always in your possession and power, then you will not be able to rely on this particular ground. Secondly, when we talk of new and important evidence, the evidence must be relevant and must be important. And when we say important, it must be important because it is capable of altering the judgment. So even though the evidence is new, it is relevant, you have exercised due diligence, but it will not alter the judgment, then you will not be able to rely on this ground. Review will not be granted.

I would like you to read the case of Fais Muhamed. This case has to do with liability. After the judgment had been made or pronounced, a document was discovered containing conclusive admission of liability. Here the court held that was a good ground for review. It was relevant. The case had to do with liability. It was not previously available and it was definitely going to alter the decision.

Also read the case of Mary Josephine v Sydney. This was a decree for the restitution of conjugal rights. It had already been passed and it was subsequently discovered that the parties were cousins and therefore the marriage was in fact null and void. In this case review was granted.

In the case of Khan v Ibrahim, the court had issued a communication for examination of witnesses in Pakistan. It later came to the attention of the court that new information had been discovered which revealed that there was no reciprocal arrangement between the two countries. Like if a Kenya court gives an order for a commission for the examination of witnesses in the UK, you discover subsequently that no reciprocal arrangement between the Kenyan courts and the courts in the UK, then that is a good reason for review.

I would also like you to read the case of Rao v Rao. In this case the suit was dismissed on two grounds:

1.      for want of notice as required by law

2.      on the grounds of the illegitimacy of the plaintiff.

It was later discovered that there was evidence revealing that the plaintiff was legitimate. An application for review was made on the grounds that there was discovery of important evidence. But here the court held that the application for review could not be granted. Why? In this particular case the evidence was not capable of altering the judgment. Because remember the case was dismissed on two grounds – one for notice and secondly the legitimacy of the plaintiff. So even though the evidence that had been discovered can show that the plaintiff was legitimate, it was only one ground of dismissal. The issue of want of notice remains. In such a case you cannot under that rule apply. It must be capable of altering the judgment.

Mistake or error apparent on the face of the record

The word error apparent on the record is not defined by the Act and also it cannot be conclusively and satisfactorily defined. Once an error, it can be an error of fact or an error of law. And an error can be said to be apparent if it is self-evident and requires no examination or argument to establish it. Very important. If it is self-evident and requires no examination or argument to establish it.

I also would like to refer you to this case, Thumbbhadra. Here the Supreme Court attempted to define this particular ground and it said that an error is apparent where it is indicative without any elaborated argument. One can be able to point out and say that is an error. It is said it is one that stares one in the fact. It is one where there could reasonably be no two opinions entertained about it.

I will give you an example. You remember the case of the Koigi wa Wamwere trial, tried by Justice Tuiyot where I think Koigi wa Wamwere was charged with robbery with violence and actually sentence for robbery with violence. But I think Justice Tuiyot sentenced him to life imprisonment. Can you see that is an error on the face of the record? All you have to do, you don’t have to travel beyond the record to establish that it was an error. All you have to do is say this is the charge, robbery with violence, and this is the punishment prescribed for the offence. Can you see that? An error apparent on the face of the record is an error that you do not have to travel beyond the record to be able to establish. It is one that you don’t even have to make an argument. The moment you have to make a long submission and supporting authority to point out there is an error. An error apparent is one that stares you in the face. All you have to say, look here, look here, and that is enough. If it is an affidavit, if you need to call witnesses to establish it is not an error on the face of the record then you will have to look for some other law on which to ask for permission for review. You cannot rely on error apparent on the face of the record.

Another example is, suppose a law has been amended and the court proceeds on the old law, an appeal can be maintained. Can you see that? That is an error apparent on the face of the record. All you have to say: this case was heard during this period. There is an official record saying that the law has since been changed. That is enough reason.

Other sufficient reasons

Again any other sufficient reasons is not defined by the Act. And basically I would say that this particular one exists for the purposes of giving the court flexibility.

What has been argued, the current argument that exists before the court is that should that sufficient reason be related to the two previous grounds or should be an independent one. Other people say that the analogy should be draw from the other two grounds -- error apparent on the face of the record and discovery of new evidence. But there have been some decisions that say it does not have to be. Just to enable the court—it might be a reason where common sense calls that it must be adduced but it does not fall under apparent error on the face of the record and does not fall under a discovery of new evidence. So my opinion is, it should be for those reasons, which are not covered by the two, but common sense and justice requires that it be reviewed. But in most decisions they all agreed with me. And you don’t have to agree with me.

Suppose the court proceeded on the wrong facts. You can’t really say new information has been discovered. But the court misapprehended the facts. So there is new evidence that has been discovered. There is no discovery of new evidence. There was no mistake, really. It is just that the court was told the facts but it misunderstood the facts. Can you now see that I would call   that a case of sufficient reason. My meaning of sufficient reason is anything that cannot be covered by the two previous grounds. But remember that is not agreed by all authorities. There are several authorities that say it has to be analogous—that is the word they use from analogy—from the other two reasons.

So we are done with the power of review, but I will tell you how you make an application for review.

Something for you to note: There is no inherent power of review. The power of review is conferred by law.

When you make an application you have to cite the enabling statute at the top there. You will see that sometimes people write under section 3A, which says:

“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court.”

So you see there are many other kinds of applications that you can make under the court’s inherent power. But I always say anybody who goes sunder section 3A, either a lay person or does not know the enabling law. Does not sufficiently know situation that is why he goes under section 3A. It is your best shot if you are not sure what law to plead. But in the case of review you can never apply for review under section 3A. You can only apply for review as conferred by statute, section 80 and all that it says. 

[Section 80: “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.”]                      

To whom is the application made?

An application for review should be made to the very judge who passed the decree or made the order. But if the judge is no longer available, it should be heard by the successor to that office.

What is the format of this application?

An application for review should be in the form of a memorandum, like that of the memorandum of appeal.

What is the procedure at the hearing?

Application for review may be divided into three stages:

1.      an application for review commences ordinarily with an ex parte application by the aggrieved party. Upon such application the court may reject it at once if there is no sufficient ground or, the second option, the court may issue a notice calling upon the opposing party to show cause why review should not be granted. The person who wants a review makes an ex parte application to the court. The court may look at it and say the ground as laid in section 80 does not exist. In that case it will dismiss it. If it finds that there may be some grounds then the court issues a notice calling the other party to show cause why review should not be granted. And that takes you to the second stage.

2.      In the second stage, the application for review shall be heard inter parties by the same court that posted the decree. Upon hearing both parties, the court may decide there is no basis for review and reject the application. If e court finds there is a basis, the rule will be made absolute. That means the application will be allowed and the court will order the case to be re-heard and that takes you to the third stage.

3.      In the third stage, the matter will be heard on the merits, usually the court will hear it at once or may it will fix for a hearing for a later date. The court will hear the matter in relation to that case, where the mistake was, or may be in relation to the new evidence that has come into light. And once the court finishes hearing the case it will either confirm its original decree or vary it. And once that decision has been made—remember we said a review is done where there is an appeal allowed but the appeal has not be been filed. So what happens supposing the court now varies that particular decision. If you are still not happy with this now you can now go to appellate court for the proper order or proper decree. Remember we did not want you to go to court without exercising your right to review first. Because you would actually be going with the wrong decision ….Okay. No one stops you, but it is better whenever your case has a decision, look at that decision first and say, do you want it reviewed before you go to the Court of Appeal. Once you write to the Court of Appeal, then you will be subjected now to the power of the appellate. So the court may want to remand the case and they want to do that, etc. Because may if it finds it so inaccurate it cannot make a decision. So you better look at first your right of review in the light of that particular judgment. So once the new judgment comes out and you not happy with it, now you go to the appellate court. And remember suppose the court—remember we said that  first and section stage the court can dismiss your application for review. But supposing the court dismisses your application for review. You can appeal against a refusal for an order to review. Remember that. You can appeal against an order for refusal to review.  But please note, you cannot review a review order. You cannot tell the court, now this review is another mistake. You cannot do that. Simply put you cannot review a review order.

And for that I would like you to look at the case of the Official Receiver and Liquidator v Freight Forwarders Kenya Ltd, Civil Appeal No. 235 of 1997. Here the court looked at the ground of any other sufficient reason. Especially looked at the decision of Akiwumi. Also looked at the decision of Justice O’Kubaso.

Also look at the case of Kimita v Watibiru. It is in volume one of the Kenya Appeal Reports, KAR 1982-88, page 977. This is a decision where the court was deciding whether any other reason, any other sufficient cause should be looked at within the interpretation of the first two preceding rules. Also you should read the case of the National Bank of Kenya v Ndung’u Njau, Civil Appeal No. 211 of 1996. Here the court took the position that review cannot take the place of an appeal. The fact that a judge erred is not sufficient ground for review within section 80. The alternative for the aggrieved is to appeal. In fact let me read you the relevant fact. The court here held, you don’t have to write, just listen:

“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be such evidence that should not require an elaborate argument to be established. It will not be sufficient grounds for review that another judge would have taken a different view  in the matter. Okay. Normally the grounds for review that the court proceeded on incorrect exposition of the law and law and written an erroneous conclusion of the law. Misconstruing a statute or other provisions of the law, cannot be a ground of review. In the instance case, the matter in dispute had been fully canvassed before the learned judge. He made a conscious decision on the matter in controversy and exercised his discretion in favour of appellant. If he had hit the wrong conclusion of law it could only be a good ground for appeal but not review.”

Remember when you file an appeal, basically you are telling the court is that the judge has erred here and there. You are saying he made an error. So if he misappraised the law or reached a different conclusion of the law, you are now making an appeal they interpret the law differently. In that case, you will appeal so that the decision can be  examined again. But the fact that the fact that we are saying the judge made an error does not mean that is a ground for review. The application for review should be confined within the three setups… Now we can look at execution proceedings:


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