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ELCDismissedNairobi Civil Case 537 of 2005· [2018] KEELC 1407 (KLR)

WAAS Enterprises Limited v City Council of Nairobi & another [2018] KEELC 1407 (KLR)

Environment and Land Court
5 October 2018
BEB M Eboso
1,461 words in judgment
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The bottom line

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A Kenyan court refused to review a land judgment, confirming that a lawyer's mistakes must be raised on appeal, not through endless review applications.

What this practically means

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Executive summary

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By notice of motion dated 30 July 2015, the 2nd defendant, Felisters Njambi Mwai, sought review of the judgment delivered on 26 September 2014 by Gitumbi J in Civil Case 537 of 2005, invoking Articles 25 and 159 of the Constitution, Sections 1, 1B, 3A and 80 of the Civil Procedure Act and Orders 45 and 51 of the Civil Procedure Rules. She argued that her advocate on record failed to call her as a witness or file a bundle of documents, so that a crucial piece of evidence - the record of a similar suit, Nairobi HCCC No 993 of 2001, said to be pending between the same parties - was never placed before the court, exposing the court to the danger of conflicting decisions. The plaintiff opposed, contending that HCCC No 993 of 2001 had been dismissed long before trial, that the parties were not identical, and that the trial court had already declined an application to peruse that file. Eboso J set out the review framework under Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules, emphasising the principle of finality of litigation. The court found no discovery of new and important matter, no error apparent on the face of the record, and no other sufficient reason for review; failure by a litigant to lead evidence is a matter for appeal, not review. The trial judge had already ruled against recalling the HCCC 993 of 2001 file and no appeal was lodged, so re-raising the issue was an abuse of process. The application was dismissed with costs to be borne by the 2nd defendant.

Key legal issues

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01

Whether grounds of advocate's failure to call a witness and file documents justify review

Holding

They do not; such grounds fall outside Order 45(1) and belong to an appeal

Reasoning

The court held there was no discovery of new and important matter, no mistake or error apparent on the face of the record, and no other sufficient reason. Allowing review on such grounds would undermine the public policy of finality in litigation, as losing litigants would endlessly return to the same court for a second bite at the cherry.

p. 2
02

Whether the ruling declining to recall the HCCC 993 of 2001 file could be revisited through review

Holding

It could not; re-raising an issue already decided, against which no appeal was lodged, is an abuse of process

Reasoning

The trial judge had considered and declined the invitation to peruse the archived file of HCCC 993 of 2001, and no appeal was preferred against that ruling. Raising the same issue as a ground for review of the subsequent judgment was therefore an abuse of the court process.

p. 2

Legal principles established

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  • A review court must respect the finality of litigation and not sit as an appellate court against its own decisions
  • Failure by a litigant to lead evidence is not a ground for review of a judgment

Court orders

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  1. 1.The notice of motion dated 30/7/2015 is dismissed for lack of merit
  2. 2.The 2nd defendant shall bear costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 25
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1, 1B, 3A and 80
  • Civil Procedure RulesOrders 45 and 51 (Order 45 rule 1)
Jurisdiction invoked
Articles 25 and 159 of the Constitution; Sections 1, 1B, 3A and 80 of the Civil Procedure Act; Orders 45 and 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "WAAS Enterprises Limited v City Council of Nairobi & another [2018] KEELC 1407 (KLR)", Case Analysis (2018). Nairobi Civil Case 537 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1407/eng@2018-10-05

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