William Kipterer Kirui v Roseline Chepkemoi Ruto [2020] KEELC 2762 (KLR)
The bottom line
#A Kenyan court refused to reopen a settled land dispute, confirming that review cannot be used as a second chance to relitigate a lost case.
What this practically means
#Executive summary
#Key legal issues
#Review versus appeal
The application is an appeal in disguise; a party cannot use review to re-hear issues or introduce evidence that existed at or before trial.
The court held that review is confined to discovery of new and important matter not attainable with due diligence, an error apparent on the face of the record, or other sufficient reason analogous to these. The applicant sought to revisit matters that existed when the suit was determined, effectively appealing the court's own judgment, which review jurisdiction does not permit.
Discovery of new evidence and due diligence
The applicant failed to show due diligence or that she was deprived of the green card evidence at trial; the evidence was within her reach during the proceedings.
The green card page was produced early in the proceedings and the complete card was obtainable from the relevant office. It was incumbent on the applicant, not the respondent, to produce the full card. Evidence existing at or before trial is not 'new and important matter' for review purposes.
Jurisdiction and res judicata
Jurisdiction was raised and determined by the trial court, and admitted in submissions; res judicata could not be raised for the first time after judgment.
The applicant's own counsel conceded in submissions that the court had jurisdiction. A party wishing to rely on a prior determination raising res judicata must plead it in the defence or raise it by application or preliminary objection before trial concludes. Having failed to do so, the applicant squandered the chance and cannot revisit jurisdiction post-judgment.
Sub judice and duty of disclosure
The respondent owed no duty to disclose the acquisition of the land during the pendency of the earlier dispute; the applicant herself was better placed to make such disclosure.
The respondent was not a party to the earlier dispute; the applicant alone was party to both disputes, knew of both, and had the opportunity to disclose the acquisition, which predated the suit. Her grievance was therefore an afterthought incapable of grounding review.
Legal principles established
#- Review cannot be used as an appeal in disguise; a party is not entitled to a re-hearing of the same issue or to supplement evidence on record through review
- A party seeking to introduce new evidence on review must demonstrate the evidence could not be produced despite exercise of due diligence, or that the party was deprived of it at trial
- An error apparent on the face of the record must be obvious and discoverable without a long-drawn process; wrong conclusions of law or evidence are grounds for appeal, not review
Court orders
#- 1.The application dated 4th July 2019 is dismissed
- 2.The applicant to pay costs of the application
- Jurisdiction invoked
- Sections 80 and 3A of the Civil Procedure Act (Cap 21) and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Kipterer Kirui v Roseline Chepkemoi Ruto [2020] KEELC 2762 (KLR)", Case Analysis (2020). Not stated in the judgment text (post-judgment application dated 4th July 2019, arising from a suit whose judgment was delivered on 28/2/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2762/eng@2020-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.