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ELCAllowedAmended Chamber Summons dated 9/1/2018 (arising from HCCC 126 of 2004, Kitale)· [2018] KEELC 1341 (KLR)

Rabecca Nasombi Khisa v Alice Lusweti [2018] KEELC 1341 (KLR)

Environment and Land Court (High Court) of Kenya at Kitale
27 September 2018
2,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Kitale land court set aside a 2016 land judgment after discovering a 1995 tribunal decision that had already awarded the entire land to the plaintiff's family.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Mwangi Njoroge J) determined an amended chamber summons dated 9/1/2018 by Alice Lusweti, widow and legal representative of the deceased original plaintiff John Khisa Mumelo, seeking substitution of advocates, leave to file review out of time, substitution to prosecute the suit, and review of the judgment of E. Obaga J delivered on 21/1/2016 in HCCC 126 of 2004 (Kitale), which had gone against her late husband in a land dispute. The application was brought under sections 80 and 95 of the Civil Procedure Act and various orders of the Civil Procedure Rules, principally Order 45. The respondent opposed, arguing the court was functus officio, that no new material existed, and that the deceased had been present at delivery of judgment. The court framed four questions under Order 45: whether an appeal had been preferred, whether there was discovery of new and important matter, whether there was an error apparent on the face of the record, and whether any other sufficient reason existed. It found no appeal had been preferred and that the matter could be heard by another judge since the trial judge had been transferred. The court found that crucial exhibits - notably the Cherangany Land Disputes Tribunal decision (RNK 14) awarding the entire land to the deceased and the adopted decree in Kitale RMCC 108 of 1995 - were never produced at trial. It also found a misdescription in the judgment regarding referral to a tribunal versus the District Officer, and that the defendant had misrepresented the tribunal's award. Holding that parallel proceedings with opposite conclusions on the same subject matter cannot coexist without rationalisation, the court allowed the application, set aside the judgment of 21/1/2016, and ordered the suit to begin de novo.

Key legal issues

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01

Discovery of new and important matter or evidence under Order 45 rule 1(1)(a)

Holding

The court found that numerous documents which would have aided determination (including the tribunal decision RNK 14 and the adopted decree RNK 15) were never produced at the trial, constituting new material sufficient for review.

Reasoning

The court perused the record and found that key exhibits were merely marked for identification or production by consent but never produced. Documents now presented through the application, such as the tribunal decision and the adopted decree, had not been before the trial court. Although fault could not be established, the non-production of these documents meant the trial court determined the case without crucial material.

p. 3
02

Error apparent on the face of the record

Holding

The court found an error in the judgment - it stated the case was referred to the District Officer and that land was ordered shared equally, whereas exhibit RNK 14 shows the Tribunal awarded the entire land to the plaintiff.

Reasoning

The judgment recorded that the referral was to the District Officer and that the land was ordered shared equally, an impression derived from the defendant's evidence. Exhibit RNK 14, the Tribunal decision, showed the entire land belonged to the plaintiff and was adopted by the court in 1995. The defendant was found to have misrepresented the contents of that decision before the court, and the contradictory proceedings had never been set aside or appealed.

p. 3
03

Whether the existence of parallel, contradictory proceedings on the same subject matter justifies review

Holding

Yes - the existence of proceedings whose import is opposite to the decree, never appealed or set aside by the defendant, is a sufficient ground for review.

Reasoning

The court held that the tribunal proceedings awarding the entire land to the plaintiff, adopted as a decree in 1995, coexisted with the opposite conclusion in the judgment of 21/1/2016. Since those earlier proceedings were never set aside or appealed, a conscious rationalisation was required. Such parallel inconsistent outcomes offend the justice system and constitute 'any other sufficient reason' under Order 45.

p. 3

Legal principles established

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  • It is improper for two proceedings with different conclusions over the same subject matter to exist side by side without rationalisation; such a parallel existence constitutes sufficient ground for review.
  • Where a judge who passed the decree is no longer attached to the court, the application for review may be determined by any other judge attached to that court.

Court orders

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  1. 1.The application is allowed as prayed
  2. 2.The judgment dated 21/1/2016 is set aside
  3. 3.The hearing of the suit to begin de novo
Jurisdiction invoked
Sections 80 and 95 of the Civil Procedure Act and Order 8 rule 5(1), Order 9 rule 9, Order 24 rules 3(1) and (2), Order 45 rule 1(1)(a) and Order 50 rule 6 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, "Rabecca Nasombi Khisa v Alice Lusweti [2018] KEELC 1341 (KLR)", Case Analysis (2018). Amended Chamber Summons dated 9/1/2018 (arising from HCCC 126 of 2004, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1341/eng@2018-09-27

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