Ezra Odondi Opar v Grace Akinyi Odhiambo & another [2018] KEELC 1112 (KLR)
The bottom line
#A Kenyan court refused to review construction-stop orders because the developers knew about the problems earlier and could not manufacture 'new' evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Engineer G. Olale Aguda report dated 20th February 2018 amounts to new and important matter of evidence justifying review
No. The report follows a visit to the suit property after the orders were made and merely records the state of works the Defendants themselves were carrying out; it was procured to obtain a favourable order to continue construction contrary to the ruling of 18th December 2017.
The orders sought to be reviewed restrained further construction pending hearing of the suit, and were issued after an inter partes hearing and a locus visit. The Defendants, as the parties undertaking the development, knew or ought to have known the status of the works and should have raised outstanding works during the hearing of the motion of 18th July 2016 and the contempt application of 13th November 2017. A party cannot manufacture 'new' evidence from its own ongoing activities and then seek review.
Legal principles established
#- A report procured after the making of orders sought to be reviewed, concerning facts the applicant knew or ought to have known at the time, does not constitute new and important matter for review under Order 45 Rule 1(b).
Court orders
#- 1.The Defendants' notice of motion dated 16th February 2018 is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction over its own proceedings; review under Order 45 Rule 1(b) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ezra Odondi Opar v Grace Akinyi Odhiambo & another [2018] KEELC 1112 (KLR)", Case Analysis (2018). Not stated in judgment (Kisumu; suit over Kisumu Municipality/Block 10/328). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1112/eng@2018-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.