Ijait C. Aluku v Salome Mwanaisha Madaga & 5 others [2020] KEELC 874 (KLR)
The bottom line
#A Kakamega landowner lost his bid to overturn a judgment because Kenyan courts only grant review for obvious errors, not new arguments or second chances.
What this practically means
#Executive summary
#Key legal issues
#Whether an error apparent on the face of the record existed
No error apparent on the face of the record was established to justify review.
The court reviewed the grounds raised, including that the plaintiff's suit was withdrawn and that the title numbers referred to no longer existed, and concluded on the authority of National Bank of Kenya v Ndungu Njau that the alleged errors were not self-evident errors requiring no elaborate argument. The record showed counsel for the plaintiff withdrew the plaintiff's case and the court proceeded with the counterclaim, which the defence established on a balance of probabilities.
Whether new and important matter or evidence had been discovered
No discovery of new and important matter or evidence not within the applicant's knowledge was shown.
Order 45 rule 1(b) and section 80 of the Civil Procedure Act require discovery of new and important matter or evidence which after due diligence could not be produced at the time of the decree. Relying on Mwihoko Housing Company Limited v Equity Building Society, the court found that the applicant had not demonstrated any such discovery justifying the reopening of the case and rehearing of the suit afresh.
Legal principles established
#- Review is only available where no appeal has been preferred against the order; once an appeal is preferred the door is closed on review.
- The error or omission on which review is based must be self-evident and should not require elaborate argument to establish.
- The court's discretion under section 80 of the Civil Procedure Act to review its own decision must be exercised judiciously, not capriciously.
Court orders
#- 1.Application dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act and Order 8 rule 3, Order 22 rule 22, Order 9 & Order 45 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ijait C. Aluku v Salome Mwanaisha Madaga & 5 others [2020] KEELC 874 (KLR)", Case Analysis (2020). Kakamega CMCC (not stated in excerpt; underlying suit over Kakamega/Lumakanda land parcels). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/874/eng@2020-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.