Sewanyanya v Aliker (Civil Application 4 of 1991)

Observed later treatment

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court held that a judgment tainted by fraud is tainted throughout and must fail, following the Privy Council in Hip Foong Hong. Rule 1(3) of the Court of Appeal Rules preserves the Court's inherent power, even after a judgment has been perfected, to set it aside to prevent abuse of process and for the ends of justice; the statutory review power of the High Court under the Civil Procedure Act does not extend to this Court. The Court could therefore entertain the application by motion. However, the applicant adduced no new evidence of fraud — having not searched the relevant 1982 minutes — so no fraud was established. The application was dismissed with costs.

Outcome

Application for review dismissed; applicant left to bring a fresh suit to impeach the judgment on the ground of fraud if so advised

Facts

The dispute concerned competing applications for a lease of suit premises at Nansana. The applicant contended he had not been notified of any approval of a lease in his favour in August 1982 and had applied afresh in 1986, which he treated as the operative application. The trial court, affirmed on appeal to the Supreme Court in Civil Appeal No. 4 of 1990, found that the proper allocation occurred in 1986, when the applicant lost to the respondent, who held an existing lease as trustee for certain beneficiaries. The applicant later moved to review that judgment, alleging that a witness, Ms. Mayiga (a former Senior Registrar of Titles), had given false evidence and concealed documents while in office, which only became available after she left. He sought admission of this allegedly fresh evidence and a re-opening of the decision on the ground of fraud.

Issues

1. Whether fraud, if established, would vitiate a judgment of the Court.
2. Whether the Supreme Court has inherent jurisdiction to set aside its own perfected judgment on the ground of fraud by way of motion, or whether the applicant must bring a fresh suit.
3. Whether the applicant established new evidence sufficient to ground an allegation of fraud.

Orders

• Application dismissed with costs.

Rules and key headnotes

Legislation cited (4)

• Court of Appeal Rules Rule 1(3)
• Court of Appeal Rules Rule 35
• Appellate Jurisdiction Act (Kenya) s.3(2)
• Civil Procedure Act

Cases cited (4)

• Hip Foong Hong v H. Neotia & Co [1918] AC 888
• Somani v Shirinkhanjo (No.2) [1971] EA 79
• Lnkamanshi Brothers Ltd v . R. Raja and Sons Ltd (1966) E.A.
• AVIAGENTS, LTD vs BALSTRAVEST niVF^TiCiriTS , LTD (19'56)1 All E.R.

Cases citing this judgment (8)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

• Bamugye v Tropical Africa Bank Ltd (Civil Application No. 384 of 2014)
• Mabikke v Law Development Centre (Misc Civil Application 14 of 2015)
• Kiganda John & Anor v Yakobo M.N Senkungu & 5 Ors [2017] UGSC 71
• Hope Sharing Familly V Wamala Vitalis (Misc. Appl. No. 215 of 2013)
• Grace Bamurangye Bororoza and 53 others vs Dr Kasirivu Atwooki and 5 others (Civil Application No.44 of 2008)
• Orient Bank Limited v Zaabwe and Another (Civil Application 17 of 2007)
• Idah Iterura v Joyce Muguta (Civil Application 2 of 2006)
• Kampala Pharmaceutical Industries 1996 Ltd v Ushilano Gallibhai (Civil Application No. 39 of 1997)

The original judgment as reported. Read the original PDF before relying on any passage.