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ELCPartially AllowedELC Case (filed 5/7/2007); Notice of Motion dated 4th May 2018· [2019] KEELC 4758 (KLR)

Khalif Sheikh Adan v Attorney General [2019] KEELC 4758 (KLR)

Environment and Land Court
6 February 2019
ECE. C. Cherono
3,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reopened a final judgment because Kenya Forest Service later discovered evidence that the plaintiff's title rested on an unapproved development plan.

What this practically means

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Executive summary

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This was a Notice of Motion dated 4th May 2018 by the Defendant/Applicant, the Kenya Forest Service, seeking stay of execution and review/setting aside of the judgment and decree delivered on 15th September 2017 in a land suit filed on 5th July 2007. The Applicant, through an affidavit of Evans Kagoda, Head of Survey and Mapping at the Kenya Forest Service, contended that the Part Development Plan (PDP Ref. 326/98/67) underpinning the Plaintiff's certificate of title had been declared not authentic by the Director of Physical Planning in a letter dated 5th February 2016, information that only reached the Applicant through a letter dated 8th March 2018, after judgment. The Applicant also argued the suit property is public land used for the County Tree Nursery, demonstration plot and Kenya Forest Service Regional Offices. The Respondent filed a preliminary objection asserting the court lacked jurisdiction and was functus officio, and opposed the application as an abusive, delayed attempt to deny him the fruits of judgment in breach of Article 40 of the Constitution. The court applied the Supreme Court's exposition of functus officio in Raila Odinga v IEBC, holding that the doctrine does not bar review where new evidence is discovered after judgment. Relying on Section 80 CPA and Order 45 Rule 1 CPR, the court found the letter from the Director of Lands constituted new and important matter not obtainable with due diligence before judgment, and held that courts will not ignore new evidence challenging the sanctity of a title merely because it comes late. The application was allowed: the judgment and decree and all consequential orders were set aside and/or reviewed, the Defendant was to pay thrown away costs of Kshs. 20,000/= within 14 days, and the parties were directed to agree on a pre-trial conference date.

Key legal issues

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01

Whether the court is functus officio and lacks jurisdiction to review its own judgment

Holding

The preliminary objection fails; Section 80 CPA read with Order 45 CPR confers jurisdiction, and functus officio does not apply where new matter is discovered

Reasoning

The court adopted the Supreme Court's exposition in Raila Odinga v IEBC on finality, holding that the doctrine does not close the door where a party discovers new evidence not within its knowledge at the time of the decision. Since Section 80 and Order 45 expressly permit review on discovery of new and important matter, the court retained jurisdiction to entertain the application.

p. 4
02

Whether the letter of the Director of Physical Planning dated 5th February 2016 and related material constitute new and important matter justifying review

Holding

Yes; the material showing that PDP Ref. 326/98/67, the basis of the Plaintiff's title, was not approved was new and important evidence not available with due diligence before judgment

Reasoning

The Head of Survey and Mapping at the Kenya Forest Service deponed that the information on the inauthenticity of the PDP only became available through a letter dated 8th March 2018, after the judgment of 15th September 2017. The court accepted this explanation as a firm foundation establishing due diligence, and held that the conditions in Section 80 CPA and Order 45 Rule 1 CPR for review were satisfied.

p. 5

Legal principles established

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  • The functus officio doctrine does not bar a court from reviewing its own judgment where a party discovers new evidence or matter which was not within its knowledge when the decision was made
  • Where the sanctity of a title is challenged on the basis of new evidence that could not be produced at the hearing, a court of law and equity will not ignore such evidence merely because it has come late
  • Section 80 CPA as read with Order 45 CPR confers jurisdiction on the court to review its judgment on the ground of discovery of new and important matter

Court orders

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  1. 1.The judgment and decree of this Honourable Court together with all consequential orders be and are hereby set aside and/or reviewed
  2. 2.The Defendant to pay the Plaintiff thrown away costs of this application assessed at Kshs. 20,000/= within 14 days
  3. 3.The parties to agree on a date for pre-trial conference

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 69(2)(b)
  • Constitution of KenyaArticle 40
  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A and 80
  • Civil Procedure RulesOrder 45 Rule 1; Order 51
  • Judicature ActSection 10
  • High Court (Practice & Procedure) RulesRule 3(1) and (2)

Cases cited (10)

  • Republic v Public Procurement Administrative Review Board & 2 Others
    (2018) eKLR
  • National Bank of Kenya Limited v Ndungu Njau
    (1996) KLR 469
  • Stephen Gathua Kimani v Nancy Wanjira Waruingi / Providence Auctioneers
    (2016) eKLR
  • Evans Buire v Andrew Ngida
    HCCA No. 103/2000 (Kisumu)
  • Timber Manufacturers and Dealers v Nairobi Golf Hotels (K) Ltd
    HCCC No. 5250/92
  • Nyamogo & Nyamogo Advocates v Kogo
    (2001) 1EA 173
  • Raila Odinga v IEBC & 3 others
  • Afit Kumar Rath v State of Orisa & Others
    (a Supreme Court cases) 596 at page 608
  • Registered Trustees of the Archdiocese of Dar es Salaam v The Chairman Bunju Village Government & Others
  • Jersey Evening Post Limited v Al Tharil
    [2002] JLR 542 at 550
Jurisdiction invoked
Section 80 of the Civil Procedure Act (Cap. 21) as read with Order 45 Civil Procedure Rules; Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (23)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Khalif Sheikh Adan v Attorney General [2019] KEELC 4758 (KLR)", Case Analysis (2019). ELC Case (filed 5/7/2007); Notice of Motion dated 4th May 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4758/eng@2019-02-06

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