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ELCDismissedApplication dated 25/11/2020 (suit previously dismissed by judgment of 11/12/2019)· [2021] KEELC 2694 (KLR)

Gathaite Farmers Co-operative Society Limited v Nicholas Kigo Ndungu & 17 others [2021] KEELC 2694 (KLR)

Environment and Land Court
30 June 2021
1,567 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a court refused to reopen a dismissed land case, ruling that documents a party could have used at trial are not 'new evidence' and delay kills review applications.

What this practically means

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Executive summary

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The applicant, through Arcadius Njora Chege as chairman of the plaintiff company, sought review and setting aside of a judgment of 11/12/2019 dismissing its land suit, invoking Sections 1A, 1B and 63(e) of the Civil Procedure Act, Order 45 and Article 159 of the Constitution. It claimed discovery of new and important evidence, principally that it still held the mother title for Makuyu/Makuyu Block 11/1086, together with a 2000 District Officer's letter, gazette notices, mutation forms, sketch maps and official searches. The respondents, through Nicholas Kigo Ndungu, opposed, challenging the applicant's locus standi and arguing that a photocopy title is not authoritative against an official search and that the documents were neither new nor credible. J. G. Kemei J framed the single issue as whether review of the 11/12/2019 judgment was warranted under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The court held the original title had already been produced at trial and the remaining documents existed during trial and could have been availed with due diligence; the application was filed almost a year later without explanation. Applying Hussein Khalid, Kamau James Gitutho and Daniel Lago Okomo, the court held review is exercised sparingly and that an unhappy litigant has no entitlement to review. The application was dismissed with costs to the applicant.

Key legal issues

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01

Discovery of new and important matter

Holding

Rejected - the original title had already been produced at trial and the mutation forms, searches and 2000 letter were not shown to be unobtainable with due diligence

Reasoning

The court found the original title had actually been produced during trial, so it was not new. The mutation forms and other documents were in existence during trial (dated 2011 and 2000) and no explanation was given for why they could not be produced with due diligence. Photocopies were also disputed as not authoritative against an official search.

p. 3
02

Undue delay

Holding

Application filed almost one year after judgment without disclosing when the new evidence came to the applicant's knowledge

Reasoning

The court noted the application was filed about a year after the judgment of 11/12/2019 and that no date was disclosed for when the new evidence was discovered. The mutation forms bore 2011 dates and names inconsistent with the alleged current officials, undermining the discovery claim.

p. 3
03

Sparingly exercised review jurisdiction and finality of judgments

Holding

Review power is exercised sparingly; the court becomes functus officio upon delivery of judgment and review must not substantially alter the decision

Reasoning

Relying on Supreme Court authority in Hussein Khalid, the court emphasised finality of litigation, functus officio and that only deserving cases merit review. A losing litigant's unhappiness is not a ground for review.

p. 3

Legal principles established

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  • A court may review its judgment only where there is discovery of new and important matter not obtainable with due diligence, an error apparent on the face of the record, or other sufficient reasons, and the application is made without undue delay
  • Review is exercised sparingly; courts have no jurisdiction to review judgments merely because a losing litigant is unhappy

Court orders

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  1. 1.Application for review dismissed
  2. 2.Applicant to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 63(e), 80
  • Civil Procedure RulesOrder 45 Rule 1, Order 8 Rule 3, Order 51
  • Constitution of KenyaArticle 159

Cases cited (5)

  • Khalif Sheikh Adan v Attorney General
    [2019] eKLR
  • The official receiver and Liquidator V Freight Forwarders Kenya Limited (UR)
  • Hussein Khalid and 16 others v Attorney General & 2 others
    [2020] eKLR
  • Kamau James Gitutho & 3 others v Multiple Icd (K) Limited & another
    [2019] eKLR
  • Daniel Lago Okomo vs Safari Park Hotel Ltd & Another
    [2018] eKLR
Jurisdiction invoked
Sections 1A, 1B and 63(e) of the Civil Procedure Act, Order 45 Rule 1, Order 8 Rule 3 and Order 51 of the Civil Procedure Rules and Article 159 of the Constitution

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, "Gathaite Farmers Co-operative Society Limited v Nicholas Kigo Ndungu & 17 others [2021] KEELC 2694 (KLR)", Case Analysis (2021). Application dated 25/11/2020 (suit previously dismissed by judgment of 11/12/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2694/eng@2021-06-30

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