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ELCDismissedApplication dated 30th July 2014 in the suit over parcel Nandi/Kamoiywo/1114· [2015] KEELC 359 (KLR)

David Randich v Joel Tirop Busienei [2015] KEELC 359 (KLR)

High Court of Kenya
5 May 2015
3,175 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Eldoret refused to reopen a land sale judgment, ruling that evidence a party had but failed to present at trial cannot justify a review.

What this practically means

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Executive summary

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David Randich (respondent/plaintiff) had sued Joel Tirop Busienei (applicant/defendant) seeking rescission of an agreement to sell agricultural parcel Nandi/Kamoiywo/1114, refund of part of the purchase price and eviction. On 10th July 2014 Justice Munyao found the sale agreements null and void for want of Land Control Board consent, ordered the respondent to refund Kshs. 555,000 within 90 days, found the applicant had no right over any part of the parcel, issued a permanent injunction against him and awarded costs to the plaintiff. The applicant then moved by the application dated 30/7/2014 seeking review or setting aside of that judgment, asserting that a Land Control Board consent had in fact been issued but his former advocates, M/s Cheluget & Company Advocates, failed to avail it, and that the Land Disputes Tribunal proceedings (Kapsabet LDT No. 59 of 2011) supported his position. The respondent opposed, arguing there was nothing new to review, the consent was undated and thus a nullity, and the application was made late while the trial judge was on transfer. Antony Ombwayo J dismissed the application. He held the consent issue was not new matter and the applicant lacked due diligence; that blaming an advocate is not a ground for review; that the undated consent application was a nullity under Sections 6 and 8 of the Land Control Act; and that the tribunal decision, not produced at trial, could not ground review as that would amount to the court sitting on appeal on its own judgment. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the alleged Land Control Board consent constitutes new and important matter for review under Order 45 rule 1

Holding

The consent was not new matter; the issue was known to the applicant, who failed to exercise due diligence in producing it, and blaming his advocates is not a sufficient reason for review.

Reasoning

The court noted the applicant testified on 12th March 2014 that no consent was issued, yet now seeks to produce one allegedly issued on 2nd March 2011. Since he knew production of the consent was necessary to succeed and the documents were with his advocates, his failure shows lack of due diligence. Further, the consent contradicts his own testimony that none was issued. Reliance on the advocate's omission cannot ground review.

p. 4
02

Validity of the consent application for want of a date

Holding

The application for consent is undated, making it impossible to compute the six-month period under Section 8 of the Land Control Act; it is therefore a nullity.

Reasoning

Section 6 of the Land Control Act renders controlled transactions void without board consent, and Section 8 requires the application to be made within six months of the agreement. Time begins running when the agreement is made, so the date of the application and its receipt by the board are essential. Without these dates the document cannot be validated and the consent is a nullity.

p. 4
03

Whether the Land Disputes Tribunal decision discloses an error apparent on the face of the record

Holding

The tribunal decision was not produced before the trial judge, who therefore made no finding on it; producing it now on review would amount to sitting on appeal on the court's own judgment.

Reasoning

The court found there was no error apparent on the face of the record regarding the tribunal decision because that decision was never produced before the trial court, which consequently made no finding on that aspect. Admitting the tribunal decision and the consent at the review stage would effectively reopen the case and reverse the judgment, a function reserved for the appellate court.

p. 5

Legal principles established

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  • Blaming an advocate for failing to place a document known to the party before the court does not constitute a ground for review, as it discloses lack of due diligence.
  • An application for Land Control Board consent that is undated, with no evidence of when it was received by the board, is a nullity since time begins running when the agreement is made.
  • A party cannot, on review, invite the court to consider evidence that ought to have been produced before the trial judge, as that would amount to sitting on appeal on its own decision.

Court orders

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  1. 1.The application dated 30/7/2014 seeking review of the judgment dated 10/7/2014 is dismissed
  2. 2.The applicant to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1
  • Land Control Act Cap 302 Laws of KenyaSection 6
  • Land Control Act Cap 302 Laws of KenyaSection 7
  • Land Control Act Cap 302 Laws of KenyaSection 8
Jurisdiction invoked
Order 45 rule 1 of the Civil Procedure Rules (review jurisdiction of the court which passed the decree)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "David Randich v Joel Tirop Busienei [2015] KEELC 359 (KLR)", Case Analysis (2015). Application dated 30th July 2014 in the suit over parcel Nandi/Kamoiywo/1114. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/359/eng@2015-05-05

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