2.Counsel submitted that the Appellant herein had filed a suit at Hola Law Courts, and gave the necessary documentary evidence required in support of the claim to his advocate who was on record but the case proceeded to full hearing but the advocate inadvertently failed to produce the documents in evidence.
3.Counsel submitted on the grounds of appeal and stated that Learned Magistrate erred in his finding that a re-trial may lead to delay and costs and may prejudice the other party but such prejudice was not demonstrated.
4.Counsel further submitted that the decision as to whether or not to reopen the case was discretionary which the court has to exercise judiciously in the interest of justice and relied on the case of Raindrops Ltd vs. County Government of Kilifi (2020) eKLR.
ANALYSIS AND DETERMINATION.
5.This appeal is based on the ground that the Learned Magistrate erred in refusing to allow an application for review to reopen the Appellant’s case due to the fact that her counsel failed to produce documents which she had given him.
6.The issue for determination is whether the appeal as presented should be allowed and in effect the court must be satisfied that the Learned erred in arriving at the decision that the Appellant is appealing against. Whether the Magistrate was right in dismissing the application for review to reopen the case to allow the Appellant to adduce more evidence and produce documents in support of her case.
7.In the case of Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates  eKLR the Court of Appeal stated as follows regarding the duty of first appellate court: -
8.The court is under a duty to consider the evidence, evaluate it and draw its own conclusions but it must bear in mind that it did not benefit from hearing the witnesses. The application before the Lower Court was for review and the grounds for review were that the Appellants counsel did not produce the documentary evidence which the Appellant had availed to him. Counsel also blamed this on the fact that the Appellant was a lay person hence did not know her counsel had not produced the documents.
9.Order 45 Rule 1 of the Civil Procedure Rules provides that:-
11.This court has powers to reconsider and evaluate the evidence and make its own conclusion. The Appellant had to convince the court that she had discovered new and important matter or evidence which after the exercise of due diligence was not within her knowledge or could not be produced by her at the time when the order was made. This would essence mean that the new evidence would refer only to a discovery made since the order sought to be reviewed was passed.
12.In this case the Appellant is lamenting about documents which were within her knowledge and that of her counsel but were not produced. Would this be considered as discovery of new knowledge or negligence of counsel to conduct the case diligently on behalf of a client. My answer to this would be that this does not amount to new knowledge as if parties were to be allowed to litigate in instalments, there would be no finality of cases.
13.An appellate court cannot interfere with the exercise of judicial discretion by the Lower Court where such discretion was exercised judiciously as was stated by Sir Charles Newbold, P. in Mbogo & Another vs. Shah  E.A. 93 at page 96: -
14.I have considered the grounds of appeal and the submissions by counsel and find that the appeal lacks merit and is therefore dismissed with each party bearing their own costs as the Respondent did not respond to the appeal.