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ELCDismissedNot stated in the judgment text (post-judgment application dated 4th July 2019, arising from a suit whose judgment was delivered on 28/2/2019)· [2020] KEELC 2762 (KLR)

William Kipterer Kirui v Roseline Chepkemoi Ruto [2020] KEELC 2762 (KLR)

High Court of Kenya (Environment and Land division inferred from subject matter; court not expressly named)
6 May 2020
2,666 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 settled land dispute, confirming that review cannot be used as a second chance to relitigate a lost case.

What this practically means

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Executive summary

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This ruling determines a notice of motion dated 4th July 2019, brought by Roseline Chepkemoi Ruto (defendant) under Sections 80 and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, seeking review of a judgment delivered on 28th February 2019 in a land dispute with William Kipterer Kirui (plaintiff). The applicant, who lost the suit, sought review and setting aside of the judgment with leave to introduce a certified copy of the green card for parcel Kericho/Kipchimchim/930, and findings that the respondent's acquisition of the parcel was sub judice and improper, that the court lacked original jurisdiction, and that the doctrine of res judicata applied by virtue of a Chief Magistrate's Court decree in Misc. Application No. 54 of 2011. The respondent opposed, contending the evidence was always available, jurisdiction was already addressed, and appeal rather than review was the proper remedy. Justice A. K. Kaniaru dismissed the application. On the sub judice grievance, the applicant alone was party to both disputes and better placed to make any disclosure. On the green card, it was incumbent on the applicant, not the respondent, to produce the complete document during trial. On jurisdiction and res judicata, the issue had been raised and determined, and the applicant's counsel had conceded jurisdiction in submissions; res judicata could not be raised for the first time after judgment. The court held that a review cannot be an appeal in disguise, that the applicant pointed to no error apparent on the face of the record and no new and important matter, and dismissed the application with costs on 6th May 2020 at Kericho.

Key legal issues

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01

Review versus appeal

Holding

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.

Reasoning

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.

p. 3
02

Discovery of new evidence and due diligence

Holding

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.

Reasoning

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.

p. 3
03

Jurisdiction and res judicata

Holding

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.

Reasoning

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.

p. 3
04

Sub judice and duty of disclosure

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 4th July 2019 is dismissed
  2. 2.The applicant to pay costs of the application

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 80
  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure Act (Cap 21)Section 7 (res judicata)
  • Civil Procedure Rules, 2010Order 45 Rules 1, 2 and 3

Cases cited (7)

  • The Independent Electoral and Boundaries Commission Vs. Maina Kiai and 5 Others
    (2017) eKLR
  • Muyodi Vs Industrial and Commercial Development Corporation & Another
    (2006) I EA 243
  • Francis Njoroge Vs Stephen Maina Kamore
    (2018) eKLR
  • Pavcras T Swai Vs Kenya Breweries Limited
    (2014) eKLR
  • Absis Belinda Vs Fredrick Kangwana & Another
    (1963) EA 557
  • Sadar Mohammed Vs Charan Singh & Another
  • The Executive Committee Chelimo Plot Owners Welfare Group & 288 Others Vs Langat Joel & 4 Others sued as the Management Committee of Chelimo Squatters Group
    (2018) eKLR
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

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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, "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.