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ELCDismissedNot stated in the judgment (Notice of motion dated 26.7.2018)· [2020] KEELC 2446 (KLR)

Adriana Kaumi Mwarabu & another v Dennis Mwenda [2020] KEELC 2446 (KLR)

Environment and Land Court
21 May 2020
LMLucy N. Mbugua
1,448 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reopen a land case because the applicants couldn't prove rent receipts were genuinely discovered after judgment, not hidden all along.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) determined a notice of motion dated 26.7.2018 in which the plaintiffs/applicants sought review of the court's judgment dated 18.7.2018, which had dismissed their claim for eviction of the defendant from plot no. 57B Kianjai market on the ground that no tenancy relationship between the defendant and the deceased, Robert Mwarabu, had been established. The applicants sought to admit rent receipts allegedly found after judgment among the deceased's items in an abandoned store, supported by a forensic document examiner's report, to prove the defendant was a tenant paying Kshs.4,500 per month for three rooms. The respondent, who claims to be a son of the deceased, opposed the application, contending the receipts were fraudulently procured, marred by inconsistencies, and that the application was an afterthought meant at stealing a judicial match, citing Francis Njoroge vs Stephen Maina Kamore and Stephen Githua Kimani vs Nancy Wanjira Wariungi. The court, guided by Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, held that the supporting affidavit of the 2nd applicant did not explain the circumstances of the discovery; that the 1st plaintiff had testified at trial that she had the receipts and tenancy agreement; that the new claim (Kshs.4,500 for three rooms) contradicted the pleaded claim (Kshs.13,800 for four rooms); and that the applicants were attempting to build a case post judgment. The application for review was dismissed with costs to the respondent.

Key legal issues

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01

Discovery of new and important matter as a ground for review under Section 80 CPA and Order 45 rule 1

Holding

The applicants did not establish discovery of new and important matter since the supporting affidavit failed to explain how the receipts were found, and the 1st plaintiff had earlier testified she had the receipts

Reasoning

The court held that the applicants' supporting affidavit gave no details of the discovery, stating only that they had tried their best to find the receipts. The 1st plaintiff had testified at trial that she had receipts and a tenancy agreement which she had given out, indicating the documents were within her knowledge. The court found the applicants were attempting to build a case post judgment and that evidence of discovery could not properly be introduced through submissions.

p. 2
02

Consistency of the review claim with the pleadings

Holding

The new claim (rent of Kshs.4,500 per month for 3 rooms) contradicted the pleaded claim (Kshs.13,800 per month for 4 rooms), undermining the application

Reasoning

The applicants had pleaded a tenancy at Kshs.13,800 per month for four rooms, but were now advancing a claim of Kshs.4,500 per month for three rooms based on the newly produced receipts. The court treated this inconsistency as confirmation that the application was an afterthought designed to steal a judicial match rather than a bona fide application based on genuinely new evidence.

p. 2

Legal principles established

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  • An applicant for review based on discovery of new evidence must give finer details, on affidavit, of how and when the new evidence was discovered; evidence of discovery cannot be adduced through submissions
  • A party cannot, through review, build a case post judgment that is not in tandem with its pleadings
  • Review will not be granted where the application amounts to an attempt to re-argue a concluded case or steal a judicial match

Court orders

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  1. 1.The notice of motion dated 26.7.2018 seeking review is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 rule 1
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (5)

  • Russel vs Duke of Norforl
    (1940) 1 ALL ER 109
  • Francis Njoroge vs Stephen Maina Kamore
    (2018) eKLR
  • Francis Orige and another versus Jacob Kamau Mungai
    C.A 149 of 2001
  • Stephen Githua Kimani vs Nancy Wanjira Wariungi T/A Providence Auctioneers
    (2016) eKLR
  • Jeremiah Muku Methodist Church of Kenya registered trustee and another
    (2009) eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules (application for review)

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, "Adriana Kaumi Mwarabu & another v Dennis Mwenda [2020] KEELC 2446 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of motion dated 26.7.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2446/eng@2020-05-21

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