Haron Obonyo Okero v Vincent Matara Onchoke [2020] KEELC 2803 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that asking for review is not a second chance to re-argue your case.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant established grounds for review of the lower court's judgment
The appeal and the underlying application for review were without merit; no ground for review was made out and the trial court's ruling was not disturbed.
The court examined each ground under Section 80 of the Civil Procedure Act and Order 45 Rule 1. The alleged error on the face of the record failed because the trial court had considered the pleaded fraud. The purported new evidence (the certificate of official search and the Land Registrar's letter) was either obtained before the suit or was information already known to the Appellant, and due diligence was not demonstrated. The court agreed the trial court could not reappraise evidence afresh; such issues belong to an appellate court.
Whether the certificate of official search and the Land Registrar's letter amounted to new and important matter
They did not; the search predated the suit and the registry confusion was known to the Appellant and partly prompted the suit.
The certificate of official search was dated 12th May 2015, before institution of the suit, so it could not be new. The Land Registrar's letter could only be admitted as new evidence upon demonstration of due diligence. The court noted the Appellant could have sought summons to have the Land Registrar testify at the hearing, which he did not do.
Legal principles established
#- The power of review is a very restricted power and is not to be confused with appellate powers; review cannot be used as an appeal in disguise.
- Evidence is not 'new and important' for review purposes if it was obtained before institution of the suit or was otherwise within the applicant's knowledge.
- Pleading fraud alone is insufficient; it must be established by proof of facts.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the Respondent
- On appeal from
- Senior Resident Magistrate's Court (Hon. S.K. Onjoro SRM)
- Not stated in judgment
- Jurisdiction invoked
- First appeal against the trial court's ruling on an application for review under Order 45 Rules 1, 2 and 3(2) of the Civil Procedure Rules and Section 80 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haron Obonyo Okero v Vincent Matara Onchoke [2020] KEELC 2803 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2803/eng@2020-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.