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ELCDismissedNot stated in judgment (Kisumu; suit over Kisumu Municipality/Block 10/328)· [2018] KEELC 1112 (KLR)

Ezra Odondi Opar v Grace Akinyi Odhiambo & another [2018] KEELC 1112 (KLR)

Environment and Land Court
31 October 2018
765 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Defendants, Grace Akinyi Odhiambo and Margaret Woigo, applied by notice of motion dated 16th February 2018 for a partial review of the court's orders of 18th December 2017, which had stopped further construction on the suit property, Kisumu Municipality/Block 10/328, pending the hearing of the suit. They sought to install waterproofing materials on the roof slab and complete internal plastering, relying on a report by Engineer G. Olale Aguda dated 20th February 2018 following a site visit of 15th January 2018. The Plaintiff, Ezra Odondi Opar, opposed through grounds of opposition dated 12th March 2018. The suit itself is a ownership dispute: the Plaintiff claims a declaration that the land belongs to him and a permanent injunction; the Defendants counterclaim for a declaration of bonafide ownership and cancellation of the Plaintiff's title. The court framed two issues: whether new and important matter justified review, and costs. It held that the Aguda report did not constitute new and important matter under Order 45 Rule 1(b) of the Civil Procedure Rules, since the Defendants, being the ones carrying out the development, knew or ought to have known the status of the works and could have raised the outstanding works at the earlier inter partes hearings. The court found the report was procured only to secure a favourable order allowing continued construction contrary to the December 2017 ruling, and advised the parties to focus on the main suit. The application was dismissed with costs.

Key legal issues

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01

Whether the Engineer G. Olale Aguda report dated 20th February 2018 amounts to new and important matter of evidence justifying review

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Defendants' notice of motion dated 16th February 2018 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1(b)
Jurisdiction invoked
Inherent jurisdiction over its own proceedings; review under Order 45 Rule 1(b) of the Civil Procedure Rules

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, "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.