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ELCDismissedNot stated in judgment (Kisumu Environment and Land Court suit)· [2020] KEELC 3076 (KLR)

Prafulla Enterprises Ltd v Katangi Developers Limited & 2 others [2020] KEELC 3076 (KLR)

Environment and Land Court
27 February 2020
5,961 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff, registered proprietor of KISUMU MUNICIPALITY BLOCK 7/428, sued the 1st and 2nd defendants (proprietors of the adjacent parcel 7/438) seeking a permanent injunction against distress and rent demands, and a refund of Kshs. 6,787,400/= rent paid from September 1993 to August 2015. The plaintiff's case was that two conflicting survey plans had reversed the positions of the plots, and that investigations by the Director of Survey and Land Registrar in 2015 established the amended plan as irregular, restoring the original plan. The 1st defendant resisted, contending the suit was res judicata and statute barred given prior litigation culminating in Kisumu High Court Civil Suit No 336 of 1999 and Kisumu Court of Appeal Civil Appeal No 117 of 2006. The Court declined to determine res judicata and limitation, those issues being subject to a pending Court of Appeal appeal against a ruling of S.M. Kibunja J of 14th June 2017. On the merits, the Court held that the 'new evidence' of the 2015 investigations failed the Ladd v Marshall threshold, since the Director of Survey's evidence could with reasonable diligence have been availed in the earlier trials, and that the fresh-suit jurisdiction must not be used by an unsuccessful litigant to patch up a weak case. The 2015 survey plan was further held to contravene the twelve-month rectification window in Section 31(2) of the Survey Act, and the 1993 sale agreement did not describe the property as fronting the Kisumu–Busia road. The suit was dismissed with costs to the 1st defendant, certified for two counsel. Out-of-time submissions filed without leave by both parties were expunged from the record.

Key legal issues

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01

Admissibility and sufficiency of 'new evidence' as a foundation for a fresh civil suit

Holding

The new evidence (2015 Director of Survey investigations) failed the Ladd v Marshall threshold because it could have been obtained with reasonable diligence during earlier trials; the Survey Assistant had testified in the prior suit on instructions of the Director of Survey.

Reasoning

The court noted that in the 1999 suit PAUL KIBET RUGUT, a Survey Assistant, testified expressly on instructions of the Director of Survey, so the Director's genuine map could have been availed then. There was no obstacle to obtaining the evidence. The expert witness in this suit admitted he was unaware of prior litigation and investigations, suggesting the 2015 investigations were undertaken to patch up a weak case. New evidence in civil law is otherwise only admissible on appeal under Section 78(1)(d) of the Civil Procedure Act and Order 42 Rule 27 of the Civil Procedure Rules.

p. 5
02

Legality of the 2015 amended survey plan

Holding

The 2015 survey plan, prepared about 18 years after the 1997 plans, contravened Section 31(2) of the Survey Act which limits rectification of errors to twelve months, and could not found the plaintiff's reliefs.

Reasoning

The court held that the 2015 plan was not procedurally prepared because Section 31(2) of the Survey Act provides a twelve-month window for correction of errors in survey plans. A plan prepared eighteen years later was in contravention of the law and could not be the basis of the reliefs sought.

p. 6
03

Res judicata and limitation

Holding

The Court expressly declined to determine these issues because a ruling on them by S.M. Kibunja J dated 14th June 2017 was on appeal before the Court of Appeal.

Reasoning

The court held it could not revisit Kibunja J's ruling nor delve into matters pending before a superior court, and steered clear of the res judicata and limitation issues despite their prominence in testimonies and submissions. A stay application by the 1st defendant had already been dismissed by the Court of Appeal in Civil Application No 65 of 2017.

p. 1
04

Probative value of the sale agreement dated 28th August 1993

Holding

The agreement did not describe the suit property as facing the Kisumu–Busia road, undercutting the plaintiff's claim of frontage.

Reasoning

The court found that nothing would have been easier than fully describing the property purchased, particularly that it was the property in which the plaintiff carried on business as tenant; its silence on frontage undermined the plaintiff's case.

p. 6

Legal principles established

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  • Fresh evidence justifying a new trial must satisfy the Ladd v Marshall conditions: not obtainable with reasonable diligence, of probable important influence, and apparently credible
  • A fresh suit based on new evidence must not be used by a previously unsuccessful litigant to fill gaps or strengthen a weak case with contradictory or patch-up evidence
  • Under Section 31(2) of the Survey Act, notices to correct errors in a survey plan must not be sent more than twelve months after the plan was sent to the Director
  • Documents must speak for themselves; a sale agreement's silence on a critical description of the property cannot be supplemented

Court orders

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  1. 1.Expunged from the record the plaintiff's supplementary submissions filed 25th November 2019 and the 1st defendant's response to submissions filed 19th November 2019 (both filed without leave)
  2. 2.Dismissal of the plaintiff's suit
  3. 3.Costs of the suit to the 1st defendant, certified for two counsel

Authorities

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Legislation

  • Constitution of KenyaArticle 50(6)
  • Civil Procedure ActSection 78(1)(d)
  • Civil Procedure RulesOrder 42 Rule 27
  • Survey ActSections 30, 31(2), 32
  • Limitation of Actions ActNot specified

Cases cited (7)

  • LADD .V. MARSHALL
    1954 1 W.L.R 14489
  • KISUMU HIGH COURT CIVIL SUIT NO 336 OF 1999
  • KISUMU COURT OF APPEAL CIVIL APPEAL NO 117 OF 2006
  • KISUMU HIGH COURT CIVIL CASE NO 396 OF 1994
  • KISUMU HIGH COURT CIVIL CASE NO 145 OF 1997
  • KISUMU HIGH COURT MISC APPLICATION NO 145 OF 1998
  • CIVIL APPLICATION NO 65 OF 2017
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property; no specific provision invoked in the judgment

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, "Prafulla Enterprises Ltd v Katangi Developers Limited & 2 others [2020] KEELC 3076 (KLR)", Case Analysis (2020). Not stated in judgment (Kisumu Environment and Land Court suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3076/eng@2020-03-13

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