Justus M'inoti M'mwambia v M'rukunga M'mboroki & 1 other
The bottom line
#The Court of Appeal confirmed you cannot revive an old court case by asking for review using information you already knew when the case was decided.
What this practically means
#Executive summary
#Key legal issues
#Requirements for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
An applicant for review must place material before the court showing new and important matter or evidence not obtainable with due diligence, or an error apparent on the face of the record, or any other sufficient reason
The court adopted its earlier statement in Mulembe Farm Ltd v John B. Masika setting out the three grounds for review. The evidence must not only be new; the applicant must prove he did not have it at the time and could not have obtained it despite due diligence. The appellant, having been a party to the lower court suits, could not claim the material was new, and did not prove any variance of court orders or misleading of the court.
Res judicata under Section 7 of the Civil Procedure Act
The High Court suit was not res judicata because the 1st respondent was not a party to the lower court suits, and the applicant had not annexed the pleadings to show the nature of the prior disputes
The court concurred with Makau, J.'s finding that the plaintiff in the High Court suit was not a party to the earlier consolidated suits, so Section 7 was not engaged. Section 7 requires the matter to have been directly and substantially in issue in a former suit between the same parties or parties under whom they claim, litigating under the same title, before a competent court, and finally decided.
Whether the mistake of the appellant's late advocate and the delay in seeking relief constituted sufficient reason
The explanation of counsel's mistake was not reasonable; the appellant did not prove he diligently followed up the matter from 1996 to 2009, and the five-year delay in applying to set aside the ex parte judgment was inordinate and inexcusable
Review jurisdiction is circumscribed and is invoked to help a party who has taken all essential steps but could not avail relevant material due to factors beyond his control. The appellant's advocate died in 2009, four years after the 2005 judgment, and the appellant only applied to set aside in 2010 without satisfactorily explaining his lack of diligence over the intervening years.
Legal principles established
#- An order of review can only issue upon discovery of new and important matter or evidence which, after due diligence, was not within the knowledge of the applicant at the time the judgment or ruling was passed
- A party who was himself a party to earlier suits cannot rely on those suits as new and important matter discovered after the order sought to be reviewed
- The Court of Appeal will not interfere with a judge's exercise of discretion on review unless the judge misdirected himself, misapprehended the law, or failed to take into account relevant matters, resulting in a wrong decision or miscarriage of justice
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the respondents
- On appeal from
- High Court of Kenya at Meru
- H.C.C.C No. 13 of 1996
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164; Civil Procedure Act) - judgment does not cite a specific provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Justus M'inoti M'mwambia v M'rukunga M'mboroki & 1 other", Case Analysis (2014). Civil Appeal No. 5 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/79/eng@2014-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.