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ELCDismissedNot stated in the judgment· [2019] KEELC 2159 (KLR)

Mary Wangari Karenju v Francis Muiruri Kinyanjui [2019] KEELC 2159 (KLR)

Environment and Land Court
23 July 2019
BEB M Eboso
1,937 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a landowner's attempt to reopen her lost case, confirming that review applications need genuinely new evidence, not second chances.

What this practically means

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Executive summary

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The appellant had sued in the Chief Magistrate's Court at Milimani seeking eviction from Land Title Number Nairobi Block 117/297 on the basis that she was the lawful owner and the respondent a trespasser. After interlocutory judgment and formal proof, the trial magistrate (Hon Ole Keiwua, PM) dismissed the suit on 30/3/2012 because the appellant had not produced an official search confirming the status of the parcel register. Eighteen months later she sought review, attaching an official search dated 28/6/2013 showing registration in her late father's name, Paul Karenju Wambugu. By a ruling of 23/5/2014 the magistrate declined to review his judgment, observing that the search was not new evidence, that trespass is a continuing tort and a fresh suit was possible, and that an appeal lay. The appellant appealed to the Environment and Land Court. B M Eboso J identified the sole issue as whether the trial magistrate failed to properly exercise his review jurisdiction under Order 45 rule 1(a) of the Civil Procedure Rules. Following the Supreme Court's decision in Parliamentary Service Commission v Martin Nyaga Wambora & Others, the judge held that review is a discretionary, equitable jurisdiction, not a second bite at the cherry; the appellant procured the search fourteen months after judgment and never demonstrated due diligence or lack of knowledge at the time of testifying. The court further held that an appeal against a refusal of review must address the review ruling, not the merits of the substantive judgment. The appeal was dismissed with costs to the respondent on 23 July 2019.

Key legal issues

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Whether the trial magistrate failed to properly exercise his review jurisdiction under Order 45 rule 1(a) of the Civil Procedure Rules

Holding

The trial court properly declined to review its judgment because the appellant failed to satisfy the requirements of Order 45 rule 1; the official search was procured fourteen months after judgment and was obtainable during trial.

Reasoning

The court restated the principles governing review from the Supreme Court's Wambora decision: review is a discretionary, equitable jurisdiction, not a second bite at the cherry. The appellant procured an official search fourteen months after the impugned judgment and sought to re-litigate her case. She did not demonstrate that the evidence could not have been obtained with due diligence or that it was outside her knowledge when she testified. The appeal also wrongly attacked the merits of the substantive judgment rather than the review ruling. The appeal therefore lacked merit and was dismissed with costs to the respondent.

p. 3

Legal principles established

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  • The power to review a judgment is a discretionary and equitable jurisdiction requiring the applicant to satisfy the mandatory criteria in Order 45 of the Civil Procedure Rules and lay a basis to the satisfaction of the court
  • An application for review is not an appeal or an opportunity to re-argue or re-litigate a case
  • An appeal challenging a trial court's failure to exercise review jurisdiction must focus on the decision on the review application, not on the merits of the substantive judgment
  • An applicant for review based on new evidence must show the evidence could not have been obtained despite due diligence or was not within her knowledge at the time of testifying

Court orders

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  1. 1.The appeal is rejected/dismissed for lack of merit
  2. 2.The respondent shall have costs of the appeal
On appeal from
Chief Magistrate's Court at Milimani
Suit in respect of Land Title Number Nairobi Block 117/297 (number not stated)
Jurisdiction invoked
First appeal from the Chief Magistrate's Court at Milimani against the ruling declining to review judgment under Order 45 rule 1(a) 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, "Mary Wangari Karenju v Francis Muiruri Kinyanjui [2019] KEELC 2159 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2159/eng@2019-07-23

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