Peter Omani Obiria v Hudson Okemwa & 3 others [2017] KEELC 3568 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether discovery of the 3rd defendant's list of trustees and Constitution constituted new and important matter warranting review
No - the documents were public documents available with due diligence, so the ground of review failed
The court held that the Constitution and any certificate of registration of the 3rd defendant would be public documents available for inspection at relevant public offices. The plaintiff could have accessed them with due diligence even before filing the suit. Relying on Mulla's commentary via Salama Mahmoud Saad, the court held that where the applicant did not act with due diligence, review on the ground of discovery of new evidence is not available.
Whether the 3rd defendant is a body corporate under the Trustees (Perpetual Succession) Act
Not demonstrated - no certificate of incorporation was produced; Article 19(j) of the ASK Constitution alone does not prove incorporation
Section 3 of the Trustees (Perpetual Succession) Act sets out an elaborate procedure for incorporation and issuance of a certificate of incorporation. The plaintiff produced no such certificate, and the court declined to act on presumption. The constitutional article relied on merely stated that trustees shall be registered under the Act, but actual registration was not proved.
Legal principles established
#- Review on the ground of discovery of new and important matter requires that the applicant acted with due diligence and that the evidence was not within his knowledge; publicly available documents cannot constitute such discovery
- A party asserting that trustees are incorporated as a body corporate under the Trustees (Perpetual Succession) Act must produce the certificate of incorporation; the court cannot act on presumptions
Court orders
#- 1.The plaintiff's Notice of Motion dated 18th May 2016 is dismissed with costs to the 3rd defendant/respondent
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules and Section 18(3)(f) of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Omani Obiria v Hudson Okemwa & 3 others [2017] KEELC 3568 (KLR)", Case Analysis (2017). Case No 284 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3568/eng@2017-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.