Sheikha Mohamed Ali & 4 others v Hamid Mohamed Abdulkadir [2020] KEELC 215 (KLR)
The bottom line
#A Mombasa court rejected a landowner's bid to overturn a possession judgment, ruling his 'new evidence' was known all along and filed three years too late.
What this practically means
#Executive summary
#Key legal issues
#Whether discovery of new and important matter justified review
No. The subdivision of Plot 619 into three plots and further subplots was within the defendant's knowledge before judgment, having been pleaded in his 2015 defence.
The defendant claimed he discovered via searches that Plot 619 no longer existed, having been subdivided into 113 subplots. The court compared the defence filed on 22nd July 2015, which itself averred that the original plot ceased to exist upon subdivision, and the title annexures showing subdivision on 14.11.2003. The alleged discovery was therefore not new, and strict proof of new evidence was required and absent.
Whether the application was brought without unreasonable delay
No. The application was filed about three years after judgment, an inordinate and unexplained delay.
Judgment was delivered on 11th May 2017 and the application for review filed on 26th February 2020. Order 45 requires review applications to be brought without unreasonable delay. The applicant neither explained the delay nor dislodged the plaintiffs' showing that three prior applications by him had all been dismissed.
Whether the court lacked jurisdiction because the suit plot no longer existed
No. The court had jurisdiction; the suit was not a nullity, and the defendant had submitted to jurisdiction throughout the proceedings.
The dispute was over vacant possession, rent arrears and mesne profits, matters within the court's competence. The defendant admitted the plaintiffs were registered proprietors in his defence and never previously raised jurisdiction. The court found the suit was not null and void and that a court cannot entertain a claim of nullity raised opportunistically three years after judgment.
Legal principles established
#- An application for review founded on discovery of new and important matter or evidence must be strictly proved.
- A court's jurisdiction flows from the Constitution or legislation and cannot be expanded through judicial craft or innovation.
- Review applications must be made without unreasonable delay, and inordinate unexplained delay defeats review.
Court orders
#- 1.The Notice of Motion dated 25th February, 2020 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 3, 3A and 80 of the Civil Procedure Act; Order 22 Rule 22, Order 45 Rules 1 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheikha Mohamed Ali & 4 others v Hamid Mohamed Abdulkadir [2020] KEELC 215 (KLR)", Case Analysis (2020). Not stated on the face of the judgment (E&L suit at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/215/eng@2020-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.