Amina Mbarak & 4 others v Rasto Gwiya Mikaya
The bottom line
#The Court of Appeal confirmed that Kenyan courts will not reopen old land judgments where parties could have found the evidence earlier and waited years to apply.
What this practically means
#Executive summary
#Key legal issues
#Due diligence and discovery of new evidence
The appellants failed to demonstrate due diligence; the sub-divisions and ownership information were openly available at the Lands Registry since 1999, before the 2000 suit.
Evidence qualifies as new only if it was not within the applicant's knowledge despite due diligence. Ownership details could have been obtained by a search at the Land Registry at any time during the suit. Having made no attempt to verify ownership, the appellants could not found a review on material that was at all times available to any diligent litigant.
Error apparent on the face of the record
The alleged failure to order return of the suit property was not an error apparent on the face of the record; the proper remedy was an appeal.
Citing Nyamogo & Nyamogo v Kogo and Kanyabwera v Tumwebaze, the court held that an error apparent must be manifest without extraneous matter, whereas the appellants' complaint invited the court to revisit the substantive determination on ownership - a matter for appeal, not review.
Unreasonable delay in applying for review
A 14-year unexplained delay was grossly unreasonable and precluded the orders sought.
Order 45 rule 1(1)(b) requires that review applications be brought without unreasonable delay. The appellants neither addressed the delay nor explained the 14-year lapse between the ruling of 2005 and the 2019 application.
Res judicata finding
The trial Judge misdirected himself in holding that the application was res judicata, as no basis was stated or discernible.
Although the trial Judge found the application res judicata, the ruling did not identify against which suit (Mombasa HCCC No 453 of 2000 or Malindi ELC No 54 of 2015) or give reasons. In the absence of any legal basis, the Court of Appeal could not sustain that finding. Nonetheless, the appeal failed on the other grounds.
Legal principles established
#- Review on the ground of discovery of new and important matter or evidence requires that the evidence was not within the applicant's knowledge despite the exercise of due diligence
- A challenge to the substantive correctness of a decision, such as the fate of property, is a ground of appeal and not of review; it is not an error apparent on the face of the record
- An application for review must be brought without unreasonable delay, and gross unexplained delay defeats the application
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- Environment and Land Court (trial court)
- Mombasa Civil Case No 453 of 2000
- Jurisdiction invoked
- First appeal from the Environment and Land Court (Court of Appeal appellate jurisdiction); appeal against refusal of review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, 2010.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amina Mbarak & 4 others v Rasto Gwiya Mikaya", Case Analysis (2024). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/637/eng@2024-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.