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ELCDismissedNot stated in the excerpt· [2020] KEELC 1528 (KLR)

Elphas Otiende Anduru v Akwera Hezron Ndegu & another [2020] KEELC 1528 (KLR)

Environment and Land Court
29 July 2020
NMN.A. MATHEKA
1,176 words in judgment
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The bottom line

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A Kenyan court refused to reopen a 2019 land judgment because the applicant showed no obvious error or genuinely new evidence.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kakamega (N.A. Matheka, J) delivered on 29th July 2020 on a notice of motion dated 24th July 2020 brought by the plaintiff/applicant under Order 45 Rules 1, 2 & 5 of the Civil Procedure Rules and sections 80 and 3A of the Civil Procedure Act. The applicant sought stay of execution of the judgment delivered on 9th April 2019, review and setting aside of that judgment and all consequential orders and decrees, amendment of the originating summons into a plaint, and a rehearing of the amended suit on merits. The application was grounded on an alleged mistake or error apparent on the face of the record, the failure of previous advocates to file a review, and alleged new and important evidence that the land belonged to the applicant through transmission rather than adverse possession. The court set out the statutory criteria in Order 45 Rule 1(b) and section 80 of the Civil Procedure Act and considered the authorities on review, including Kwame Kariuki v Mohamed Hassan Ali, Mwihoko Housing Company v Equity Building Society, Rose Kaiza v Angelo Mpanju Kaiza and National Bank of Kenya v Ndungu Njau. It held that the discretion to review is unfettered but must be exercised judiciously; the error relied on must be self-evident and not require elaborate argument. The court found that the applicant had failed to demonstrate any error apparent on the face of the record or sufficient reason for review, and that no new matter or evidence existed since the plaintiff's written statement and evidence were already on record. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the requirements for review under Order 45 Rule 1(b) and section 80 of the Civil Procedure Act were met

Holding

The applicant failed to establish a mistake or error apparent on the face of the record, discovery of new and important matter or evidence, or any other sufficient reason; the application was dismissed

Reasoning

The court applied Order 45 Rule 1(b) and section 80 of the Civil Procedure Act, which require discovery of new and important matter not producible with due diligence, an error apparent on the face of the record, or sufficient reason. The applicant's written statement and evidence were already on record, so no new evidence existed. The alleged error was not self-evident and the discretionary power was to be exercised judiciously.

p. 2
02

Whether the claim of newly discovered evidence justified review

Holding

No new matter or evidence had come to the plaintiff's knowledge since his written statement and evidence were already on record

Reasoning

A ground of review is discovery of new and important matter or evidence which, after due diligence, was not within the applicant's knowledge at the time of the decree. The court found the plaintiff's written statement and evidence were all on record, meaning nothing new was before it. Reliance on the claim that the land belonged to the applicant through transmission rather than adverse possession did not disclose new evidence.

p. 2

Legal principles established

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  • Review is only available where no appeal has been preferred against the order; once an appeal is preferred the court whose order is appealed from cannot review it
  • The error or omission relied on for review must be self-evident and not require elaborate argument to establish; a different view of the matter or an erroneous conclusion of law is not a ground for review
  • The court's discretion under section 80 of the Civil Procedure Act is unfettered but must be exercised judiciously and not capriciously

Court orders

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  1. 1.The application dated 24th July 2020 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1, 2 & 5
  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 80
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 44 Rule 1 (as cited in Rose Kaiza Vs Angelo Mpanju Kaiza)

Cases cited (4)

  • Kwame Kariuki & Another Vs. Mohamed Hassan Ali & 4 Others
    (2014) eKLR
  • Mwihoko Housing Company Limited vs Equity Building Society
    (2007) 2 KLR 171
  • Rose Kaiza Vs Angelo Mpanju Kaiza
    2009
  • National Bank of Kenya Vs Ndungu Njau
    Civil Appeal No. 211 of 1996
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rules 1, 2 & 5 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elphas Otiende Anduru v Akwera Hezron Ndegu & another [2020] KEELC 1528 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1528/eng@2020-07-29

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