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ELCDismissedApplication dated 25 July 2018 in Constitutional Petition filed 16 July 2012· [2019] KEELC 4444 (KLR)

Rosemary Wanjiru Njiraini v Officer in Charge of Station Molo Police Station & another [2019] KEELC 4444 (KLR)

Environment and Land Court
19 February 2019
5,977 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a review application, confirming that forgotten evidence cannot be revived after losing a case.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 25 July 2018 by the respondents (the Attorney General and the Kenya Police Service) seeking review of the court's judgment of 19 October 2017, in which the court had allowed the petitioner's constitutional petition and ordered the applicants not to interfere with her use and occupation of land parcel Molo Township Block 11/157, the applicants having failed to prove that the land was set aside for Molo Police Station. The applicants invoked Order 45 of the Civil Procedure Rules, claiming discovery of three Part Development Plans said to have been inadvertently not produced at trial. The petitioner opposed, arguing first that the applicants' Notice of Appeal barred review, and second that the evidence was available all along and the application was filed after unexplained delay. The court framed two issues. On the first, it held that the mere filing of a Notice of Appeal does not divest a party of the right to apply for review, distinguishing the deeming provision of Order 42 Rule 6(4) as confined to stay applications and following the Court of Appeal in Haryanto v ED & F Man (Sugar) Ltd, I.C Kamau Ndirangu and Noradhco v Gloria Michele. On the merits, it found no due diligence: the PDPs dated 1994, 1995 and 1998 were always available, the applicants never filed any list of documents despite directions and adjournments, the alleged misfiling story was disbelieved, and the application came some nine months after judgment. Even on their substance, the documents were unapproved draft PDPs for residential plots, not for the police station, and would not have altered the outcome. The application was dismissed with costs to the petitioner.

Key legal issues

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01

Whether filing a Notice of Appeal bars an application for review

Holding

No. A Notice of Appeal is merely an intention to appeal; only the institution of a substantive appeal deprives a party of the right to review.

Reasoning

The court distinguished Equity Bank v West Link Mbo, noting that the deeming provision in Order 42 Rule 6(4) applies only for stay-of-execution purposes ('for the purposes of this rule'). Guided by the Court of Appeal decisions in Haryanto v ED & F Man (Sugar) Ltd, I.C Kamau Ndirangu v Commercial Bank of Africa and Noradhco v Gloria Michele, it held that an appeal is only instituted when a record of appeal is lodged, not upon a Notice of Appeal.

p. 5
02

Whether the application for review was merited on discovery of new evidence

Holding

No. The PDPs were available or obtainable during trial with due diligence, and the application was filed after unreasonable delay of about 9 months.

Reasoning

The deponents could not state who dispatched the documents, when, or to whom; the alleged wrong-file claim failed because the Misc. Application No. 73 of 2012 file had been finalized close to two years before trial directions were issued. The applicants never filed any list of documents despite adjournments and 30-day directions, showing the evidence was available but simply not presented.

p. 5
03

Probative value of the alleged new evidence

Holding

Even if admitted, the documents were two unapproved draft PDPs for residential plots and a survey sketch, none for Molo Police Station, and would not have changed the outcome.

Reasoning

The court examined the documents and found them unapproved drafts for residential plots in Molo, not a PDP for the police station, with no bearing demonstrated on the disputed plot; hence they could not challenge the legitimacy of the petitioner's title or lead to a contrary decision.

p. 6

Legal principles established

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  • The mere filing of a Notice of Appeal does not divest a party of the right to file an application for review; only the filing of a substantive appeal does.
  • Review cannot be used to fill gaps in evidence a party could have presented at trial; all evidence must be tabled at trial.

Court orders

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  1. 1.The application for review dated 25 July 2018 is dismissed
  2. 2.Costs of the application to the petitioner

Authorities

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Legislation

  • Civil Procedure ActSection 3A; Section 80
  • Civil Procedure RulesOrder 45 rule 1; Order 42 rule 6(4)
  • Constitution of KenyaArticle 40
  • Court of Appeal RulesRule 5(2)(b); rule 75(1)

Cases cited (13)

  • Equity Bank Limited vs West Link Mbo Limited
    (2013) eKLR
  • Julia Wagacii Njunge & Another vs Housing Finance Company Limited & Another
    (2005) eKLR
  • Draft & Develop Engineers Limited vs National Water Conservation & Pipeline Corporation
    (2014) eKLR
  • Anthony Gachara Ayub vs Francis Mahinda Thinwa
    (2014) eKLR
  • Paul Muthee Munuhe vs Executive Secretary, Seventh Day Adventist Church C.K.C & 3 Others
    (2016) eKLR
  • D.J. Lowe & Company Limited vs Banque Indosuez
    Civil Application No. 210 of 1998 (unreported)
  • Francis Origo & Another vs Jacob Kumali Mungala
  • Noradhco Kenya Limited vs Gloria Michele
    Civil Appeal No. NAI 258 of 1997, (1998) eKLR
  • Haryanto vs ED & F Man (Sugar) Ltd
    Civil Appeal No. 122 of 1992 (unreported)
  • Motel Schweitzer vs Thomas Edward Cunningham and another
    (1955) 22 EACA 252
  • I.C Kamau Ndirangu vs Commercial Bank of Africa Limited
    Civil Appeal No. 125 of 1993 (1994) eKLR
  • Wananchi Group (Kenya) Limited vs Communication Commission of Kenya & Another
    Petition No. 98 of 2012 (2014) eKLR
  • R vs The Anti-counterfeit Agency & Another ex parte Surgipharm
    JR No. 11 of 2012
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 45 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, "Rosemary Wanjiru Njiraini v Officer in Charge of Station Molo Police Station & another [2019] KEELC 4444 (KLR)", Case Analysis (2019). Application dated 25 July 2018 in Constitutional Petition filed 16 July 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4444/eng@2019-02-19

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