Republic v Reuben Kandugu Kahihania & 2 others;John Karugo Kuria (Interested Partyt) [2020] KEELC 1309 (KLR)
The bottom line
#The court refused to review its earlier judgment because none of the narrow legal grounds for review — obvious error, new evidence, or other sufficient reason — was satisfied.
What this practically means
#Executive summary
#Key legal issues
#Error apparent on the face of the record
The ground fails; the court had already given the Applicant the benefit of doubt and determined his application on its merits despite the unannexed leave orders, so no error on the face of the record existed and no prejudice was suffered
The judgment of 7/5/2020 had already noted the unannexed leave orders at paragraph 11 and, at paragraph 12, proceeded to determine the application on the merits despite the omission. Because the court reached the merits, the Applicant suffered no prejudice from failing to exhibit the leave orders, and therefore there was no error of inadvertence apparent on the face of the record capable of grounding review.
Discovery of new and important matter or evidence
The ground fails; the Applicant knew he had lived on and developed the suit land but withheld that information from his own advocate, so due diligence was not demonstrated
Review on the basis of new evidence requires that the evidence was not within the applicant's knowledge after exercise of due diligence. Here the Applicant himself possessed the information about his occupation and extensive development of the land; it was he who allegedly withheld it from his counsel. Information deliberately withheld by a principal from his legal advisor cannot qualify as newly discovered matter justifying review.
Any other sufficient reason - composition of the panel of elders
The ground fails; the issue was fully adjudicated in the judgment of 7/5/2020 and is not a ground for review
The complaint about the legality of the composition of the panel of elders was squarely considered and pronounced upon in paragraph 14 of the judgment sought to be reviewed. A party cannot use a review application to re-litigate issues already determined on the merits; such a plea is not analogous to the grounds specified in Order 45 and amounts to an attempted appeal against findings already made.
Legal principles established
#- New evidence supporting review must be relevant, presumably believable, and of such a character that it might possibly have altered the judgment, and the applicant must show due diligence
- An error apparent on the face of the record must be obvious and self-evident, requiring no elaborate argument; an error requiring reasoning is not a ground for review
- A party cannot rely as new evidence on facts that were within his own knowledge but withheld from his advocate
Court orders
#- 1.The Notice of Motion dated 15/6/2020 seeking review of the judgment dated 7/5/2020 is dismissed
- 2.Costs of the application payable by the Applicant
- Jurisdiction invoked
- Order 45 Rule 6(2) of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Reuben Kandugu Kahihania & 2 others;John Karugo Kuria (Interested Partyt) [2020] KEELC 1309 (KLR)", Case Analysis (2020). Judicial Review Application arising from Notice of Motion dated 15/6/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1309/eng@2020-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.