Benard Gachie Kamau v Livingstone Wanyoike Kinyanjui & 16 others [2021] KEELC 1779 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that evidence you had during your trial cannot justify review later—the appeal failed and costs went to the respondents.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in finding no ground for review of its judgment of 10th December 2018
The appeal was not merited; the requirements for review under Order 45 Rule 1 were not satisfied because the alleged new evidence dated between 2011 and 2017 was within the Appellant's knowledge or reach during the pendency of the suit
The court re-evaluated the evidence as a first appellate court. The Appellant had pleaded fraud in his Amended Defence dated 13th November 2014, had an application to adduce further evidence dismissed on 22nd June 2016, and the documents now relied on (charge sheets, document examiner's report, statements) were dated between 2014 and 2017 and recorded during the pendency of the suit. He was therefore obliged to prove fraud at trial and could not introduce that evidence on review, which would amount to the court sitting on appeal against its own orders.
What is the scope of review under sections 80 and 3A of the Civil Procedure Act and Order 45 Rule 1
A court may review its decree or order only on discovery of new and important matter not obtainable with due diligence, error apparent on the face of the record, or other sufficient reason, and the application must be made without undue delay
The court set out the statutory grounds and applied them to the facts, holding that the discovery ground relates to facts genuinely new after due diligence, not evidence a party possessed or could have produced at trial. An erroneous conclusion of law or evidence is a ground of appeal, not review.
Legal principles established
#- New evidence that a party knew of, or could have obtained with due diligence during trial, does not constitute discovery of new and important matter for review under Order 45 Rule 1; a party who pleaded fraud was obliged to prove it at trial.
Court orders
#- 1.Appeal dismissed entirely
- 2.Ruling and Order of the trial court upheld
- 3.Respondents awarded the costs of the Appeal
- On appeal from
- Chief Magistrate's Court at Thika
- Thika CMCC 879 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court review ruling, under the Civil Procedure Act (sections 80, 63(e), 3A) and Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benard Gachie Kamau v Livingstone Wanyoike Kinyanjui & 16 others [2021] KEELC 1779 (KLR)", Case Analysis (2021). Thika CMCC 879 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1779/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.