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ELCPartially AllowedApplication dated 25 July 2018 (suit filed 12 April 2012)· [2019] KEELC 898 (KLR)

Elijah Machironda Chengo v Athuman Hassan Mwanguvu & 7 others [2019] KEELC 898 (KLR)

Environment and Land Court
16 October 2019
1,888 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, a group member of Mwereni Group Ranch, had sued the defendants for invading and cultivating his undivided portion of approximately 198.88 acres forming part of parcel Kwale/Mwereni/14. In an uncontested suit, Justice A. Omollo delivered judgment on 8 December 2015 barring the defendants from the land, declared the plaintiff's ownership and left boundary demarcation to the ranch's Executive Committee, but declined to award damages for crop damage because no report by an agricultural officer was produced and only photographs were tabled, with no proof of who caused the damage. By an application dated 25 July 2018 under Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Orders 9 and 45 of the Civil Procedure Rules, the plaintiff sought leave to appoint new counsel, review of the judgment for failure to assess damages, leave to produce a Crop Damage Assessment Report, and orders for the OCS Lungalunga Police Station to assist execution. Munyao Sila J allowed only the change of counsel. He held that the report, dated 23 May 2013 and known to the plaintiff when he testified on 9 July 2015, was not new and important matter; that review cannot be used to fill gaps in a party's evidence, which is a matter for appeal; that the application was brought after an unexplained delay of nearly three years; and that damages could not be awarded as none were pleaded, parties being bound by their pleadings. The execution prayer was premature. The application was dismissed save for the change of counsel, with no orders as to costs.

Key legal issues

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01

Whether the Crop Damage Assessment Report constitutes new and important matter for review

Holding

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

Reasoning

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.

p. 2
02

Whether the application for review was brought without unreasonable delay

Holding

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

Reasoning

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.

p. 3
03

Whether damages could be awarded on review when none were pleaded

Holding

No; the plaint sought only a mandatory injunction, vacant possession and costs, and parties are bound by their pleadings

Reasoning

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.

p. 3
04

Whether the OCS Lungalunga Police Station should assist in executing the judgment

Holding

The prayer was premature because no continuing interference was alleged and the Group Ranch Executive Committee had not yet ascertained the boundaries

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.The prayer for review of the judgment of 8 December 2015 dismissed
  3. 3.The prayer for the OCS Lungalunga Police Station to assist in execution of the judgment refused as premature
  4. 4.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21, Laws of KenyaSections 1A, 1B, 3A and 80
  • Civil Procedure RulesOrder 9 Rule 9 and 10
  • Civil Procedure RulesOrder 45 Rule 1(1) and 2(2)
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

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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, "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.