Palasina Sibiro Lubeka v Thomas Anzeze [2018] KEELC 2737 (KLR)
The bottom line
#A Kakamega court refused to reopen a land case decided six months earlier and ordered police to help enforce the eviction order.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant established grounds for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
The application for review and setting aside of the judgment dated 27th September 2017 fails; no ground for review was established
The court found the documents now relied on were already on record at the full hearing - the plaintiff had produced green cards (PEx 9, PEx 10 a,b,c and PEx 11) showing how and when the subdivision was done, so the applicant was aware of the subdivision at the time of hearing. He was present at delivery of judgment, never appealed, and filed the application six months later, guilty of laches. No new and important matter, no error apparent on the face of the record, and no other sufficient reason was demonstrated.
Whether the plaintiff was entitled to an order for police security to execute the decree of 27th September 2017
The plaintiff's application dated 3rd May 2018 for the officer commanding Kilingili police station to provide security during execution was granted as prayed
Judgment was delivered on 27/9/2017 in the presence of both parties ordering the defendant to vacate land parcel North/Maragoli/Viyalo/1654, but he has refused and ignored to obey court orders. The defendant raised no new issues; litigation must come to an end and court orders must be obeyed. For the sake of peace, the police were ordered to enforce the valid court orders dated 27/9/2017.
Legal principles established
#- The jurisdiction to review is restricted to the grounds in Order 45 Rule 1: discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, applied for without unreasonable delay
- An error apparent on the face of the record must be self-evident and not require elaborate argument; it is not enough that another judge could have taken a different view
- Grounds for review of discovery of new matter, error apparent or other sufficient reason relate to issues of fact emerging from evidence, not issues of law
- Equity aids the vigilant, not the indolent; a court of equity refuses its aid to stale demands where the claimant has slept on his rights
Court orders
#- 1.The defendant's application dated 13th March 2018 seeking stay, review/vacation of the judgment of 27th September 2017, leave to amend the defence, and rehearing of the suit is dismissed with costs
- 2.The plaintiff's application dated 3rd May 2018 is granted as prayed with costs to the plaintiff, directing that the officer commanding Kilingili police station provide security at the time of execution of the decree dated 27/9/2017 for the defendant to vacate land parcel North/Maragoli/Viyalo/1654
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act; Orders 8 Rule 3, 22 Rule 22 and 45 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Palasina Sibiro Lubeka v Thomas Anzeze [2018] KEELC 2737 (KLR)", Case Analysis (2018). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2737/eng@2018-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.