Jacob Mwanto Wangora v Mary Waruga Wokabi & 3 others [2018] KEELC 1229 (KLR)
The bottom line
#A Kenyan land court refused to review an adverse possession judgment, confirming that disagreements with a decision belong in an appeal, not a review application.
What this practically means
#Executive summary
#Key legal issues
#Error apparent on the face of the record
The alleged errors were matters of opinion and reasoning forming grounds of appeal, not patent errors on the face of the record
Applying Muyodi v Industrial and Commercial Development Corporation, the court held that errors requiring a long drawn process of reasoning, or on which two opinions may conceivably exist, do not meet the review threshold. A possible view adopted by the court may be challenged on appeal but is not a ground for review. The Applicants' five enumerated errors all arose from such reasoning.
Discovery of new and important matter or evidence
No new evidence was established; the Chief's baraza minutes and Green Card were already within the Applicants' knowledge and had been referred to in their documents
The minutes of the 2010 Chief's office meetings were referred to in the witness statement of James Gatheca Karanja, and the Green Card had been produced in court as an exhibit by consent. Under Rose Kaiza, a party must show no remissness in adducing all possible evidence at the hearing. The Applicants failed to establish due diligence or that the material could not be produced earlier.
Alleged denial of fair hearing / failure to conduct a site visit
The court record showed parties were directed to file written submissions and no party applied for a site visit; the procedure adopted was proper
On 21st September 2016 the court directed written submissions within 30 days; the court never ordered the matter to proceed by oral evidence, contrary to the Applicants' assertion. The Applicants filed a replying affidavit and witness statements which they relied on in submissions. No party had applied for a site visit before the directions were given.
Unreasonable delay in filing the review application
The application filed on 30th May, 2018 after the Applicants had filed and then withdrawn a notice of appeal was an afterthought filed with unreasonable delay
The Plaintiffs pointed out the application was made over a month after judgment and after the Defendants had abandoned their appeal. The court accepted that having initially filed for appeal, the review application was filed as an afterthought, reinforcing the dismissal.
Legal principles established
#- An error apparent on the face of the record must be one where no two opinions are reasonably possible; a view adopted by the court that is a possible one is a ground for appeal, not review
- A party seeking review on discovery of new evidence must show it exercised due diligence and there was no remissness in adducing all possible evidence at the hearing
- An Originating Summons may be canvassed by written submissions or oral evidence; the procedure is immaterial so long as parties present their evidence
Court orders
#- 1.The Notice of Motion dated 30th May, 2018 is disallowed
- 2.Costs awarded to the Respondent (Plaintiff)
- Jurisdiction invoked
- Articles 48, 50 & 159 of the Constitution; Section 80 of the Civil Procedure Act; Order 45 rules 1 & 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacob Mwanto Wangora v Mary Waruga Wokabi & 3 others [2018] KEELC 1229 (KLR)", Case Analysis (2018). Not stated in judgment (ELC at Ngong; the Defendants' Notice of Motion dated 30th May, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1229/eng@2018-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.