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ELCDismissedNot stated in the judgment (Notice of Motion dated 15th May 2019)· [2020] KEELC 1775 (KLR)

Frank Donath v Lydia Gachuki Muriungi [2020] KEELC 1775 (KLR)

Environment and Land Court
10 July 2020
JOJ.O. Olola
1,156 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen a land dispute, ruling that late filings and forgotten documents are not grounds for review.

What this practically means

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Executive summary

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This was a ruling on the Defendant's Notice of Motion dated 15th May 2019 seeking review and setting aside of the Court's orders of 14th March 2019 in an environment and land dispute between Frank Donath (Plaintiff) and Lydia Gachuki Muriungi (Defendant). The application was premised on three grounds: that the earlier Ruling proceeded on a mistake or error apparent on the face of the record because the Court believed the Defendant had not filed a response when she had in fact filed a Replying Affidavit on 4th April 2018; that she had since obtained new evidence - a Title Deed showing she was a joint owner of the suit property with the Plaintiffs; and that there were sufficient reasons in the Replying Affidavit that the Court had not considered. The Plaintiff opposed, contending the Replying Affidavit was filed extraordinarily late without leave, and that the Title Deed was a forgery procured while he had lost his passport and lodged a police complaint. The Court, applying Order 45 Rule 1 of the Civil Procedure Rules, found that the record showed the Defendant's advocates had been granted successive extensions and still filed the Replying Affidavit two weeks late without leave, so there was no error or omission in the Court's failure to consider it. The claimed new evidence of ownership failed because ownership of the suit property is the very subject of the dispute and the Defendant could not explain how she became a joint owner. Relying on the Court of Appeal decision in Stephen Githua Kimani v Nancy Wanjira Waruingi T/A Providence Auctioneers, the Court held that review is allowed only on strong grounds. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Error apparent on the face of the record - failure to consider a late-filed Replying Affidavit

Holding

No error apparent: the Replying Affidavit was filed out of time without leave after counsel had been granted successive extensions, so the Court could not treat its non-consideration as a mistake or error on the face of the record.

Reasoning

The Court traced the record: the Defendant's advocates obtained 14 days to respond, then on 21st March 2018 sought a further three days, yet filed the Replying Affidavit two weeks late on 4th April 2018 without leave. Since the affidavit was improperly on record, the Court's treatment of the Plaintiff's application as uncontroverted in the Ruling of 14th March 2019 was not an error or omission justifying review.

p. 2
02

Discovery of new and important matter or evidence - the Title Deed evidencing joint ownership

Holding

The ground fails: ownership of the suit property is the very subject of the dispute, and the Defendant could not explain the process by which she became a joint owner, so the evidence did not qualify as newly discovered matter discovered after due diligence.

Reasoning

The Defendant claimed to have obtained a Title Deed showing joint ownership with the Plaintiffs, evidence allegedly not in her possession at the hearing. The Court held that ownership could not simply 'dawn' upon a party, especially where the question of ownership is itself the subject matter of the suit. The Plaintiff also alleged the Title Deed was a forgery obtained when he had lost his passport and lodged a police complaint. The Court of Appeal authority on review was applied against the applicant.

p. 2

Legal principles established

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  • Review under Order 45 is limited to discovery of new and important matter or evidence not obtainable with due diligence, mistake or error apparent on the face of the record, or any other sufficient reason
  • An application for review will only be allowed on strong grounds, particularly where its effect would be to re-open the case afresh

Court orders

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  1. 1.The Defendant's Notice of Motion dated 15th May 2019 seeking review and setting aside of the orders of 14th March 2019 is dismissed
  2. 2.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (1)

  • Stephen Githua Kimani –vs– Nancy Wanjira Waruingi T/A Providence Auctioneers
    (2016) eKLR
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Frank Donath v Lydia Gachuki Muriungi [2020] KEELC 1775 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 15th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1775/eng@2020-07-10

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