Rosemary Wanjiru Njiraini v Officer in Charge of Station Molo Police Station & another [2019] KEELC 4444 (KLR)
The bottom line
#The Environment and Land Court dismissed a review application, confirming that forgotten evidence cannot be revived after losing a case.
What this practically means
#Executive summary
#Key legal issues
#Whether filing a Notice of Appeal bars an application for review
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.
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.
Whether the application for review was merited on discovery of new evidence
No. The PDPs were available or obtainable during trial with due diligence, and the application was filed after unreasonable delay of about 9 months.
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.
Probative value of the alleged new evidence
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.
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.
Legal principles established
#- 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
#- 1.The application for review dated 25 July 2018 is dismissed
- 2.Costs of the application to the petitioner
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.