Joyce Kilonzo v Attorney General & 3 others [2021] KEELC 2077 (KLR)
The bottom line
#The Environment and Land Court in Makueni dismissed Rhoda Mutheu's attempt to reopen her closed case because she produced no genuinely new evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the letter dated 28th November, 2019 (RM-1) constituted new and important matter or evidence for purposes of review under Order 45 Rule 1
It did not; the Applicant's own witness was seized with all information relating to the plot and there was no connection between the repossession matters in the letter and the Applicant's case
The court found the Applicant's witness already possessed all information on the plot, so nothing new was discovered. The letter concerned repossession notices from Wote Town Council of 2009, unconnected to the alleged 1997 allocation of plot 63. Facts of no probative value cannot ground review, and due diligence required the Applicant to obtain such evidence before her case closed.
Whether the explanation for the witness's absence on the hearing date was credible
No; there was a material contradiction between the claim that the witness was sick and evidence showing he was in Nairobi on official duties
The Applicant deposed that her witness was sick on 28th October, 2019, yet her submissions indicated he was in Nairobi on official duties, evidenced by an invitation letter to a Naivasha meeting. No deposition by the witness himself confirmed either sickness or travel on the relevant date. The court treated this contradiction as undermining the application's bona fides.
Whether there was any other sufficient reason to warrant review
There was none; although the application was filed without unreasonable delay, no other sufficient reason justified review of the closing order
The application was filed about two months after the order closing the Applicant's case, which the court found was not unreasonable delay. However, having failed on discovery of new evidence and given the contradictions in her explanation, the Applicant could not rely on 'any other sufficient reason' under Order 45 Rule 1.
Legal principles established
#- A party seeking review must show discovery of new and important matter or evidence which, after due diligence, was not within its knowledge or could not be produced at the time the order was made
Court orders
#- 1.The Notice of Motion dated 17th December, 2019 is dismissed
- 2.Costs awarded to the Plaintiff/Respondent and the 1st Defendant/Respondent
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act, Cap 21 and Orders 45 and 50 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce Kilonzo v Attorney General & 3 others [2021] KEELC 2077 (KLR)", Case Analysis (2021). Notice of Motion dated 17th December, 2019 (ELC suit, Makueni - plot No. 63 Wote Town). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2077/eng@2021-09-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.