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ELCDismissed· [2019] KEELC 4140 (KLR)

Michael Odhiambo Ouko v George Ochieng Omodho & another [2019] KEELC 4140 (KLR)

Environment and Land Court
20 March 2019
SKS. M. Kibunja
650 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 Defendants, George Ochieng Omodho and Mary Omodho, moved the Environment and Land Court by notice of motion dated 10th April 2018 seeking review of orders (a) and (b) of the decree dated 5th February 2018 so as to reduce the balance of the purchase price payable to the Plaintiff, Michael Odhiambo Ouko, from Kshs. 1,735,000/= to Kshs. 490,000/=. They relied on affidavits of the 1st Defendant and alleged acknowledgements of payment of 27th February 2017 and 31st May 2017. The Plaintiff opposed through a replying affidavit sworn on 20th August 2018, disputing the acknowledgements and alleging that the signatures attributed to him were forgeries. The court, S.M. Kibunja J, framed two issues: whether grounds for review were established and who should bear costs. The court held that its judgment of 31st January 2018 had already taken into account all payments brought to its attention, including a further payment of Kshs. 700,000/=, leaving Kshs. 1,735,000/= outstanding. The alleged acknowledgements did not constitute an error on the face of the judgment or decree, and the Defendants identified no new and important fact or evidence that could not have been availed at the hearing. The court observed that disputed signatures could be reported to the Directorate of Criminal Investigations and faulted counsel for not involving each other in payments under the decree. The motion was dismissed with costs.

Key legal issues

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01

Whether the Defendants established grounds for review of the decree

Holding

No; the alleged post-judgment payments evidenced by disputed acknowledgements were neither an error on the face of the record nor new and important evidence discoverable for review.

Reasoning

The judgment of 31st January 2018 already took into account all payments brought to the court's attention. The alleged acknowledgements were disputed, one post-dated the close of the Defendants' case and the other the judgment itself, and payments were not made through the court or counsel. Such matters do not constitute an error apparent on the face of the record nor newly discovered evidence, so the threshold for review was not met.

02

Costs of the application

Holding

Costs awarded to the Plaintiff as the successful party.

Reasoning

Having found no merit in the motion, the court dismissed it with costs, the ordinary consequence of an unsuccessful application, notwithstanding the court's observation that both counsel should have ensured payments under the decree involved the other side.

p. 2

Legal principles established

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  • Disputed acknowledgements of payment whose existence is contested and which were not brought to the court's attention at hearing do not amount to an error on the face of the judgment or decree and cannot found a review.
  • A party seeking review must show what new and important fact or evidence has been discovered which it could not have availed at the hearing and which would have led to a different decision.

Court orders

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  1. 1.The Defendants' notice of motion dated 10th April 2018 is dismissed with costs.
  2. 2.Either party is at liberty to report the disputed acknowledgements and alleged forged signatures to the Directorate of Criminal Investigations for appropriate legal processes and action.
Jurisdiction invoked
Inherent jurisdiction to review its own judgment and decree under the applicable review provisions (grounds for review on the face of the record and discovered evidence)

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, "Michael Odhiambo Ouko v George Ochieng Omodho & another [2019] KEELC 4140 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4140/eng@2019-03-20

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