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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal (Mombasa), judgment delivered 24th May 2024· [2024] KECA 568 (KLR)

Santokh Singh T/A Trilok Construction v Sucham Investment Limited

Court of Appeal of Kenya
24 May 2024
5,726 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal reinstated a Kshs 7.9 million judgment against a resort owner, ruling that review cannot be used to sneak evidence back into a decided case.

What this practically means

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Executive summary

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The appellant contractor sued the respondent hotel owner in the Chief Magistrate's Court at Mombasa for Kshs 16,514,808.11 allegedly outstanding under a partly oral, partly written construction agreement for the refurbishment of Amani Tiwi Beach Resort. The trial magistrate dismissed both claim and counterclaim, holding the contract terms unclear. On first appeal, the High Court on 2nd June 2020 found no signed contract, dismissed the counterclaim for want of proof, and entered judgment for the appellant on the admitted sum of Kshs 7,947,089.08 based on the final valuation certificate, with no costs to either party. The respondent then applied for review, seeking to introduce documentary evidence of cement deductions, to vary the decretal sum to Kshs 5,416,141.07 and to pay by instalments. On 29th March 2021 the Judge declined to admit the additional evidence, but held she had overlooked the deductions on the face of the final certificate, reviewed her judgment, reduced the decretal sum, and allowed payment in monthly instalments of Kshs 400,000/=, each party bearing their own costs. The appellant appealed. Before the Court of Appeal, the respondent's competency objection raised casually in submissions failed, the Court holding that such serious applications must be brought by Notice of Motion under rule 44. On the merits, the Court held that the issues of the parties' intention, accounting for expenses and the deductions were not errors apparent on the face of the record, as they required a long-drawn process of reasoning and possibly further evidence which the Judge had already found inadmissible. The Judge had inconsistently relied on evidence she had refused to admit. The appeal was allowed, the ruling of 29th March 2021 was set aside, the judgment of 2nd June 2020 was reinstated, and costs of the appeal were awarded to the appellant.

Key legal issues

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01

Competency of the appeal raised in submissions rather than by formal application

Holding

The competency objection failed because it was raised casually in submissions rather than by Notice of Motion supported by affidavit as required by rule 44 of the Court of Appeal Rules.

Reasoning

Rule 44 requires all applications under the Rules to be made by Notice of Motion supported by affidavit, which advances the rules of natural justice. Raising a serious application to strike out an appeal in submissions deprives the other side of the opportunity to be heard on the issue. Accordingly the objections based on rules 82(1) and 90 and the alleged undated, unsigned Notice of Appeal could not be sustained.

p. 6
02

Scope of review for error apparent on the face of the record

Holding

The question of the parties' intention, the need to account for expenses, and the deductions to be made before payment were not errors apparent on the face of the record; they required reasoning on points admitting of two opinions and possibly further evidence, and could not sustain a review.

Reasoning

The Court restated the authorities that an error apparent on the face of the record must strike one on mere looking at the record, without a long-drawn process of reasoning, and where two opinions are not conceivable. The issue of the parties' intention, the need for the appellant to account for expenses, and the deductions on the final certificate did not meet that threshold. They may well have required further evidence which the Judge had already found inadmissible, yet she proceeded to do the very thing she had avoided.

p. 9
03

Whether the learned Judge erred in reviewing her judgment

Holding

Yes. Having disallowed the prayer to admit additional evidence, the Judge nonetheless relied on the deductions evidenced by documents she had refused to admit, undermining her own ruling; the review was erroneous and the ruling was set aside.

Reasoning

The Court noted the internal inconsistency: the Judge found that admitting the further evidence would make it impossible for the appellant to respond effectively, yet proceeded to rely on the deductions to vary the decretal sum. Review is not an appeal in disguise and cannot be used to substitute a view or re-assess evidence. The review therefore had to be set aside and the original judgment of 2nd June 2020 reinstated.

p. 9

Legal principles established

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  • An error apparent on the face of the record justifying review must stare one in the face and be correctable on mere inspection without a long-drawn process of reasoning or where two opinions are conceivable; issues requiring further evidence or weighing of intentions are not such errors.
  • A court may not use review to substitute its own view or re-assess evidence; review is strictly confined to correcting a mistake and cannot operate as an appeal in disguise.
  • An application for striking out an appeal made casually in written submissions rather than by Notice of Motion supported by affidavit, as required by rule 44 of the Court of Appeal Rules, cannot be sustained.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of the High Court dated 29th March 2021 set aside
  3. 3.Judgment of the High Court delivered on 2nd June 2020 reinstated (thereby restoring the decretal sum of Kshs 7,947,089.08 and the direction that each party bear their own costs in that judgment)
  4. 4.Costs of the appeal awarded to the appellant
On appeal from
High Court of Kenya at Mombasa
High Court Civil Appeal No 153 of 2019 (arising from CMCC No. 1524 of 2017)
Jurisdiction invoked
First appellate jurisdiction over the High Court sitting on appeal from the Chief Magistrate's Court; second appeal confined to matters of law (implicitly under the Court of Appeal Act and the Civil Procedure Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Santokh Singh T/A Trilok Construction v Sucham Investment Limited", Case Analysis (2024). Civil Appeal (Mombasa), judgment delivered 24th May 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/568/eng@2024-05-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.