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ELCDismissedNot stated in the judgment· [2017] KEELC 885 (KLR)

Dorcas Wairimu Njunguna v Joseph Mwigai Njunguna [2017] KEELC 885 (KLR)

Environment and Land Court
29 November 2017
AKA. K. Kaniaru
1,026 words in judgment
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The bottom line

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The Environment and Land Court dismissed a landowner's attempt to overturn a judgment because he alleged a signed document existed but brought no proof.

What this practically means

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Executive summary

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The Defendant/Applicant, Joseph Mwigai Njuguna, filed a Notice of Motion dated 27/5/2016 seeking review and/or setting aside of the judgment delivered on 30/11/2015 in a land dispute over parcel No. BUKHAYO/MUNDIKA/1915, and recall of the Land Registrar, Busia, to produce the original transfer form, which he contended was duly signed by the transferor, Paul Njuguna Mwigai. He argued that the photocopy tendered at trial lost the visibility of the transferor's signature during photocopying. The Plaintiff/Respondent, Dorcas Wairimu Njuguna, opposed the application as defective, asserting that the photocopies were confirmed as true copies of the original by the court and the parties, and that no sufficient grounds for review existed. The court found the application unmeritorious on three grounds. First, the Applicant alleged but failed to demonstrate that a signed original transfer form existed, offering no annexure or confirmation from the Land Registrar. Second, review is treated with utmost caution and cannot be used to introduce new evidence; the Applicant failed to show due diligence or inability to produce the form at trial. Third, and most fundamentally, the grant of letters of administration under which the Plaintiff/Respondent sued had been revoked, removing her legal capacity, so it would be improper to issue orders against her. The court noted that the judgment did not vest ownership in the Plaintiff/Respondent but merely reverted the title to the previous owner, with succession processes to follow. The application was dismissed with costs to the Plaintiff/Respondent. (Dated, signed and delivered at Busia on 29th November 2017 by A. K. Kaniaru, Judge.)

Key legal issues

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01

Whether the Applicant established sufficient grounds for review of the judgment

Holding

The application for review failed because the Applicant did not demonstrate that the original transfer form was signed, nor that he exercised due diligence during trial

Reasoning

The court held that an application for review is always treated with utmost caution because review should not be used to introduce new evidence. The applicant must show due diligence, absence of knowledge of the evidence during trial, or that he was deprived of a chance to avail it. The Applicant's bare allegation, unsupported by any annexure or confirmation from the Land Registrar, was insufficient to persuade the court to exercise its discretion in his favour.

p. 2
02

Whether the judgment could be set aside given the revocation of the Plaintiff/Respondent's grant of letters of administration

Holding

It would be improper to issue orders against the Plaintiff/Respondent because the grant enabling her to sue had been revoked, stripping her of legal capacity

Reasoning

The court observed that the suit was filed and tried on the basis that the Plaintiff/Respondent had the requisite legal capacity by virtue of a grant of letters of administration. Following revocation of that grant, as disclosed in the Applicant's supplementary affidavit, the Plaintiff/Respondent no longer has capacity, making it improper to issue orders against her. The judgment did not vest ownership in her; the title simply reverted to the previous owner, and legal processes would follow to establish ownership in the estate.

p. 2

Legal principles established

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  • A party who alleges a fact in a court of law must demonstrate or prove it, not merely allege it
  • An application for review is treated with utmost caution and should not be used to supplement or introduce new evidence; the applicant must demonstrate due diligence and inability to produce the evidence at trial
  • Where a plaintiff's grant of letters of administration has been revoked, the plaintiff loses legal capacity to sue, and it is improper to issue orders against such a plaintiff

Court orders

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  1. 1.The Notice of Motion dated 27/5/2016 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A and 63(e)
  • Civil Procedure RulesOrder 42
  • Constitution of Kenya, 2010Article 159(1) and (2)
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act (Cap 21), Order 42 of the Civil Procedure Rules and Article 159(1) and (2) of the Constitution of Kenya, 2010

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, "Dorcas Wairimu Njunguna v Joseph Mwigai Njunguna [2017] KEELC 885 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/885/eng@2017-11-29

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