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Court of AppealDismissedCivil Appeal No. 201 of 2012· [2018] KECA 623 (KLR)

Stephen Wanyoike Kinuthia (Suing on behalf of John Kinuthia Marega (deceased) v Kariuki Marega & another [2018] KECA 623 (KLR)

Court of Appeal of Kenya
11 May 2018
RNR. N. NambuyeASAsike-MakhandiaWilliam OukoW. Ouko
2,865 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed courts will only reopen judgments with strict proof of genuinely new evidence—not weak documents or rehashed arguments.

What this practically means

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Nairobi (Nambuye, Makhandia and Ouko, JJ.A) delivered on 11th May 2018, dismissing an appeal against the ruling of Nyamweya J of the Environment and Land Court dated 19th June 2012 in ELC No. 666 of 2007. The dispute is a family land conflict over Plot No. Githunguri/Gathieko/412. After the respondents failed to attend hearings at Kericho, Angawa J entered an ex parte judgment awarding the appellant permanent and mandatory injunction and Kshs. 500,000 in general damages. Muchelule J later set aside that judgment, finding triable issues and noting the parties' relationship and the ancestral nature of the land. The appellant's application for review of that decision was dismissed by Nyamweya J, prompting this appeal. The Court of Appeal affirmed, holding that no new and important matter or evidence was discovered, as the certificate of confirmation relied on did not prove the respondents were personally before the High Court on the relevant date. No error apparent on the face of the record was established under the Muyodi test of an obvious and patent mistake. The Court stressed that the discretion to set aside ex parte judgments exists to do justice between parties, and that it is always paramount to ensure nobody is denied an opportunity to be heard, especially in a protracted ancestral land dispute. The appeal was dismissed with costs, and the main action was directed to be listed for hearing without further delay. The decision binds lower courts on the strict proof required for review on grounds of new evidence and on the meaning of an error apparent on the face of the record.

Key legal issues

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01

Grounds for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

Holding

The appellant failed to demonstrate discovery of new and important matter or evidence, or any error apparent on the face of the record, justifying review of Muchelule J's decision setting aside the ex parte judgment

Reasoning

The certificate of confirmation relied on did not prove that the respondents and their counsel were personally before the High Court on 29th May 2009, as such certificates are usually issued days after hearing. The alleged conflicting orders did not constitute an error apparent on the face of the record in the sense of an obvious and patent mistake requiring no drawn reasoning.

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02

Discretion to set aside ex parte judgments where there is a triable issue

Holding

Muchelule J's discretion was judicially exercised; setting aside the ex parte judgment in view of triable issues, the parties' relationship, and the ancestral land nature of the dispute was unassailable

Reasoning

The court reiterated the Shah v Mbogo and Patel v E.A. Cargo Handling principles that the discretion to set aside ex parte judgments exists to avoid injustice and hardship and is not meant to obstruct justice. A defence on merit means a triable issue, not a defence that must succeed. That decision was not challenged on appeal.

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03

Definition of an error apparent on the face of the record

Holding

An error apparent on the face of the record must be an obvious and patent mistake, not one established by long drawn reasoning or on which two opinions may be conceived

Reasoning

The court adopted the explanation in Muyodi v Industrial and Commercial Development Corporation and the Tanzanian decision in Chandrakhant Joshibhai Patel v R, noting the distinction between a mere erroneous decision and an error apparent on the face of the record; no such error was found in Muchelule J's decision.

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Legal principles established

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  • Whether to set aside a judgment or review a ruling is a matter of judicial discretion exercised in the interest of justice, and review requires strict proof of discovery of new and important matter or evidence
  • As a general rule, the paramount consideration is to ensure that no party is denied an opportunity to be heard on the merits

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The main action must be listed for hearing without further delay

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules (repealed)Order IXB rule 3
  • Civil Procedure Rules (repealed)Order IXB rule 8
  • Civil Procedure Rules (repealed)Order XLIV
  • Civil Procedure Rules (repealed)Order XLIV Rule 1(1)
  • Civil Procedure Rules, 2010Order 45
  • Civil Procedure Rules, 2010Order 12 rule 2

Cases cited (5)

  • Shah v. Mbogo & Anor
    (1966) EA 116
  • Patel vs. E.A Cargo handling Services Ltd
    (1974) E.A. 75
  • Muyodi V. Industrial and Commercial Development Corporation & Another
    (2006) 1 EA 243
  • Nyamogo & Nyamogo -vs- Kogo
    (2001) EA 174
  • Chandrakhant Joshibhai Patel V R
    (2004) TLR, 218
On appeal from
Environment and Land Court of Kenya at Nairobi
ELC No. 666 of 2007
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over the Environment and Land Court ruling in ELC No. 666 of 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Stephen Wanyoike Kinuthia (Suing on behalf of John Kinuthia Marega (deceased) v Kariuki Marega & another [2018] KECA 623 (KLR)", Case Analysis (2018). Civil Appeal No. 201 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/623/eng@2018-05-11

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