Jacinta Pere & another v Lukas Kibengwa Okara t/a Kenagwa Enterprises & another [2021] KEELC 1853 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that losing parties can't reopen judgments years later without genuinely new evidence and a prompt application.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellants demonstrated discovery of new and important evidence warranting review
No; the alleged new evidence (the 2nd Respondent's letter of 29th March 2005 and the Part Development Plan) merely reaffirmed what the appellants had already pleaded and testified to, and related to Plots 1104 and 140 rather than the suit plots 143 and 144
The court found the issues on ownership had been canvassed at the hearing with each party producing title documents. The appellants admitted the 1st Respondent owned plots 143 and 144 and that they owned plots 1104 and 140. The letter of 29th March 2005 simply reaffirmed what was already in the Defence and oral testimony, so it was neither new nor important evidence.
Whether the delay in filing the application for review was inordinate and inexcusable
Yes; the application was filed about two years after the judgment of 16th September 2003, and the explanation that the Decree had not been extracted was not candid or plausible
The court held that upon delivery of judgment parties are free to apply for the Decree, and the appellants gave no plausible reason for failing to do so for two years. The claim that delay was occasioned by service of the Decree on 28th June 2005 was unreasonable since the Decree was available from the date of judgment.
Whether the trial Magistrate erred in disregarding PW2's evidence as perjured and misleading
No; the appellants did not oppose PW2's testimony and had the opportunity to, and did, cross-examine him to test the veracity of his evidence
The court noted that PW2 was the 2nd Respondent's Surveyor sent to testify upon service of a witness summons on the County Clerk. The appellants never raised any objection to his testimony at trial and cross-examined him, so they could not attack his credibility belatedly in a review application.
Whether there was sufficient reason to warrant review and a hearing de novo
No; the appellants did not demonstrate any sufficient reason for review, and the trial Magistrate properly declined to set aside or review the judgment
Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules, together with the cited authorities, the court associated itself with the trial Magistrate's finding that the threshold for review was not met. The appellants fully participated in the hearing and gave no clear reason why the matter should commence afresh.
Legal principles established
#- Review requires discovery of new and important matter which was not within the knowledge of the applicant and could not be produced at the time the decree was passed, or an error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay
- Discovery of new and important matter under the review jurisdiction relates to issues of fact, not issues of law
Court orders
#- 1.The Ruling delivered by Hon. T.W.C Wamae (Mrs.) on 15th September, 2005 in Milimani Commercial Courts SRM Civil Suit No. 9710 of 2002 is upheld
- 2.The Appeal is dismissed with costs to the 1st Respondent
- On appeal from
- Milimani Commercial Courts (Senior Resident Magistrate)
- SRM Civil Suit No. 9710 of 2002
- Jurisdiction invoked
- First appeal from the subordinate court, transferred to the Environment and Land Court at Kajiado in 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacinta Pere & another v Lukas Kibengwa Okara t/a Kenagwa Enterprises & another [2021] KEELC 1853 (KLR)", Case Analysis (2021). ELC. Case No. 951 of 2017 (Formerly Nairobi Civil Appeal No. 790 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1853/eng@2021-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.