Elijah Machironda Chengo v Athuman Hassan Mwanguvu & 7 others [2019] KEELC 898 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Crop Damage Assessment Report constitutes new and important matter for review
It does not; the report dated 23 May 2013 was in the applicant's knowledge when he testified on 9 July 2015 and its non-production was attributed to former counsel's oversight, which does not satisfy Order 45 Rule 1
Order 45 Rule 1 requires that new evidence, after due diligence, was not within the applicant's knowledge and could not be produced when the decree was made. Here the plaintiff had testified that an agricultural officer visited his land and confirmed the damage, so the evidence existed and was known to him. Counsel's oversight cannot convert available evidence into new evidence, and the threshold for review on that ground is high.
Whether the application for review was brought without unreasonable delay
It was not; judgment was delivered on 8 December 2015 and the application dated 25 July 2018 came close to three years later with no explanation
An application for review must be brought promptly and without unreasonable delay. The applicant offered no reason for waiting nearly three years after judgment before filing, so the application would fail on that basis alone, independent of the merits of the new-evidence ground.
Whether damages could be awarded on review when none were pleaded
No; the plaint sought only a mandatory injunction, vacant possession and costs, and parties are bound by their pleadings
The court cannot grant relief not sought in the pleadings. Since the plaint contained no claim for damages, allowing the applicant to reopen his case to prove crop damage through the assessment report would serve no purpose and would be an exercise in futility.
Whether the OCS Lungalunga Police Station should assist in executing the judgment
The prayer was premature because no continuing interference was alleged and the Group Ranch Executive Committee had not yet ascertained the boundaries
The judgment left boundary demarcation to the Executive Committee of the ranch. Until that is done and continuing interference is demonstrated, there is nothing on the ground for the police to execute; the prayer was therefore premature and refused.
Legal principles established
#- A review application is not a substitute for an appeal and cannot be used to fill gaps in evidence a party could have adduced at the hearing
- Evidence known to and available with a party at the time of testimony does not meet the threshold of new and important matter for review under Order 45 Rule 1
- An application for review must be brought promptly and inordinate delay is independently fatal
- Parties are bound by their pleadings and a court cannot award relief not sought
Court orders
#- 1.Leave granted for M/s Marende Necheza & Company Advocates to come on record for the plaintiff in place of Messrs Okanga & Company Advocates
- 2.The prayer for review of the judgment of 8 December 2015 dismissed
- 3.The prayer for the OCS Lungalunga Police Station to assist in execution of the judgment refused as premature
- 4.No orders as to costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 9 Rule 9 and 10 and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elijah Machironda Chengo v Athuman Hassan Mwanguvu & 7 others [2019] KEELC 898 (KLR)", Case Analysis (2019). Application dated 25 July 2018 (suit filed 12 April 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/898/eng@2019-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.