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ELCDismissedNot stated in the judgment· [2018] KEELC 4760 (KLR)

Wilson Amuge Lagat v Kiprono Kapteberewo & 4 others [2018] KEELC 4760 (KLR)

Environment and Land Court
30 January 2018
2,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's attempt to revive a dismissed suit through review failed because he presented nothing the court had not already seen.

What this practically means

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Executive summary

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The plaintiff applied by motion dated 7 October 2015 for review of the court's ruling of 4 March 2015, which had struck out his suit as res judicata and devoid of substance, seeking reinstatement of the suit for full hearing. The underlying dispute concerned land parcel Baringo/Perkerra-101/178, over which the applicant had lost in Nakuru HCCC No. 164 of 1990 and in Court of Appeal Civil Appeal No. 96 of 1995. The applicant relied on alleged discovery of new and important matter and non-disclosure of material facts: that the land still appeared registered in the name of the Settlement Fund Trustees, and that Kapteberewo Koibos and the 1st defendant, Kiprono Kapteberewo, had died yet the latter's death was not disclosed when the dismissal application was argued. The respondents objected to the incoming advocates' appearance and contended no grounds for review existed. The court first held that a consent filed between outgoing and incoming advocates satisfied Order 9 Rule 9, disposing of the objection. On the merits, the court found no new evidence: the official search had been annexed and considered before the original ruling, and allegations of fraud in subdivision had been raised and considered. The deaths were disclosed or known - Kapteberewo Koibos's death appeared in the defence and was implied by the plaint's wording, and Kiprono Kapteberewo died after the dismissal application was filed. The court distinguished the Yatich Chepkonga authority, noted the abandoned notice of appeal, and dismissed the application with costs, the suit remaining dismissed.

Key legal issues

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01

Whether the applicant discovered new and important evidence justifying review

Holding

No; the official search showing the title still in the name of the Settlement Fund Trustees was available and annexed before the original ruling, so it is not new evidence

Reasoning

The court noted that the search certificate dated 19 March 2013 had been annexed by the applicant in reply to the dismissal motion, and was considered in the ruling of 4 March 2015. The applicant's allegations that the land was never subdivided and that the displayed titles were fraudulent were also raised on oath in his reply. Evidence considered before the original ruling cannot qualify as new matter for review.

p. 4
02

Whether non-disclosure of the deaths of Kapteberewo Koibos and Kiprono Kapteberewo vitiated the earlier ruling

Holding

No material non-disclosure existed; the death of Kapteberewo Koibos was disclosed in the defence and apparent from the plaint's use of the past tense, and Kiprono Kapteberewo's death occurred after the dismissal application was filed

Reasoning

The court found the applicant knew of Kapteberewo Koibos's death since he did not sue him and referred to him in the past tense, and paragraph 7 of the defence disclosed his demise. Kiprono Kapteberewo died on 25 October 2013, after the 6 May 2013 application was filed, so the Yatich Chepkonga case (where a deceased person purportedly instituted a suit) was distinguishable. The suit against him abated under Order 24.

p. 4
03

Whether the incoming advocates were properly on record

Holding

Yes; a consent filed by the outgoing and incoming advocates on 13 October 2015 satisfies Order 9 Rule 9

Reasoning

Order 9 Rule 9 permits a change of advocate after judgment upon a consent filed between the outgoing and incoming advocate. Such a consent was filed on 13 October 2015 when the review application was lodged, so the preliminary objection lacked substance.

p. 3

Legal principles established

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  • To obtain review, a party must demonstrate discovery of new and important matter or evidence which could not have been obtained with due diligence, or a mistake or error apparent on the face of the record, or other sufficient reason
  • Evidence that was before the court when the original order was made cannot constitute new evidence for purposes of review
  • An incoming advocate after judgment may come on record upon a consent filed between the outgoing and incoming advocate under Order 9 Rule 9
  • Post-ruling changes to the land register cannot be a ground for review of the earlier ruling

Court orders

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  1. 1.The application for review dated 7 October 2015 is dismissed with costs
  2. 2.The plaintiff's suit remains dismissed with costs

Authorities

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Legislation

  • Limitation of Actions Act, Cap 22Section 4(4)
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Rules, 2010Order 24

Cases cited (3)

  • Yatich Chepkonga & 13 Others vs Chairman, Secretary, Treasurer and Board of Trustees, Baringo Technical College
    Eldoret ELC No. 166 of 2015
  • National Bank of Kenya Ltd vs Njau
    Nairobi Court of Appeal No. 211 of 1996
  • Grace Akinyi vs Gladys Kemunto Obiri
    Eldoret ELC No. 193 of 2015
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)

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, "Wilson Amuge Lagat v Kiprono Kapteberewo & 4 others [2018] KEELC 4760 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4760/eng@2018-01-30

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