Wilson Amuge Lagat v Kiprono Kapteberewo & 4 others [2018] KEELC 4760 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant discovered new and important evidence justifying review
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
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.
Whether non-disclosure of the deaths of Kapteberewo Koibos and Kiprono Kapteberewo vitiated the earlier ruling
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
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.
Whether the incoming advocates were properly on record
Yes; a consent filed by the outgoing and incoming advocates on 13 October 2015 satisfies Order 9 Rule 9
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.
Legal principles established
#- 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
#- 1.The application for review dated 7 October 2015 is dismissed with costs
- 2.The plaintiff's suit remains dismissed with costs
- Jurisdiction invoked
- Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.