Otieno, Ragot & Company Advocates v National Bank of Kenya Ltd (Civil Appeal 60 & 62 of 2017) [2020] KECA 894 (KLR)

Section 2(2) of the Court of Appeal Rules defines an appeal to include an intended appeal. The respondent had lodged a notice of appeal against the ruling before filing its application for review, effectively keeping open its option to appeal while pursuing review. Relying on Karani v Kijana and African Airlines International, the court held that once an appeal is taken, review is ousted and the matter merges in the appeal. The review application was therefore incompetent and the High Court had no jurisdiction to grant the orders sought.

Order 45 Rule 3(2) requires strict proof of discovery of new matter not within the applicant's knowledge despite due diligence. The mistake in filing the wrong letter was an oversight, not an error apparent on the face of the record, since the taxing officer could not have known of the other letter. The respondent's deponent claimed he only realised the problem on reading the ruling, which the court found was designed to mislead the court; the respondent had gone back to the drawing board and fished out evidence to bolster its case.

In its written submissions, counsel for the respondent conceded the application was about an error on the face of the record rather than discovery of new evidence. The learned Judge should have seen that the application as presented could not succeed and should not have allowed the respondent to change its case without amendment, thereby denying the appellant the opportunity to respond. Had the respondent's complaint truly been that the Judge erred, the proper recourse was the appeal it had already commenced.

A reference is an appeal from the decision of the taxing officer. Admission of documents in taxation proceedings is a preserve of the taxing officer under Rule 13A of the Advocates Remuneration Order. Allowing new evidence on account of an inadvertent mistake opens the door to litigants introducing material that should have been placed before the taxing officer, and is prejudicial to the opposing party and against public policy. Further, the letters sought to be admitted would not have led to a different conclusion, as the purported executed agreement was not attached.

The respondent prayed that its reference be allowed; it did not ask that the reference be heard afresh, yet the learned Judge ordered a fresh hearing. Once the Judge formed the view that the respondent was not entitled to the order allowing its reference, he should have dismissed the application. None of the parties had addressed the court on the question of a re-hearing, and the appellant's response would have been different had it known that was under consideration.