Faustino Njeru Njoka & another v Rugano Nthiga & 18 others; Stephene Igogo Matheri & 2 others (Interested PartIies) [2019] KEELC 565 (KLR)
The bottom line
#A Kenyan court refused to reopen a land case over facts the party already knew, but removed one parcel already decided elsewhere.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 26th September 2019 should be reviewed on account of discovery of new and important material facts
Review refused on this ground; the alleged facts were known to the Interested Party during the proceedings and, with due diligence, could have been canvassed before judgment
The court weighed the application against the responses and submissions and held that the material relied on was not new to the applicant. Matters known to a party during the pendency of proceedings cannot form the basis of review under Order 45 Rule 1, since the ground presupposes matters not within the knowledge of the court or applicant despite due diligence at the time of judgment.
Whether parcel Mbeere/Mbita/2171 should be removed from the judgment as res judicata by Kerugoya JR No. 3 of 2014
Granted; the court accepted that Title No. Mbeere/Mbita/2171 was the subject of earlier proceedings in Kerugoya ELC Misc. Civil Application (JR) No. 3 of 2014 and warranted removal from the judgment
This was the sole ground on which the court was satisfied that review was warranted. The parcel had been the subject of a judgment delivered on 9th June 2016 by Justice B.N. Olao in ELC JR Misc. Civil App. No. 3 of 2014, and its inclusion in the 2019 judgment would therefore cover ground already determined in earlier proceedings.
Whether the orders of 25th July 2018 lifting restrictions on parcels 2087, 2548 and 2571 should be set aside
Refused; no justification to set aside the orders more than a year after they were made, and no reasonable explanation for the delay was given
The court emphasized the lapse of time between delivery of judgment, the making of the orders of 25th July 2018, and the filing of the application on 14th November 2019. In the absence of a reasonable explanation for the inordinate delay, the court found no reason to revisit orders long after they were made.
Legal principles established
#- Review on the ground of discovery of new and important matter is not available where the alleged matters were within the applicant's knowledge during the pendency of the proceedings and could, with due diligence, have been raised before judgment
- A party seeking to set aside orders must tender a reasonable explanation for any delay in doing so
Court orders
#- 1.The court grants order No. 5 of the notice of motion dated 14th November 2019 (removal of parcel LR No. Mbeere/Mbita/2171 from the judgment of 26th September 2019)
- 2.The rest of the prayers sought in the application are declined
- 3.The 2nd Interested Party shall pay the Applicants in the originating summons and the 3rd Interested Party costs of the application
- Jurisdiction invoked
- Order 45 Rule 1, Order 5 Rule 1, Order 10 Rule 11 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faustino Njeru Njoka & another v Rugano Nthiga & 18 others; Stephene Igogo Matheri & 2 others (Interested PartIies) [2019] KEELC 565 (KLR)", Case Analysis (2019). Embu ELC Originating Summons (Judgment of 26th September 2019) – Review Application by Notice of Motion dated 14th November 2019 by the 2nd Interested Party. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/565/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.