Gathaite Farmers Co-operative Society Limited v Nicholas Kigo Ndungu & 17 others [2021] KEELC 2694 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Discovery of new and important matter
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
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.
Undue delay
Application filed almost one year after judgment without disclosing when the new evidence came to the applicant's knowledge
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.
Sparingly exercised review jurisdiction and finality of judgments
Review power is exercised sparingly; the court becomes functus officio upon delivery of judgment and review must not substantially alter the decision
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.
Legal principles established
#- 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
#- 1.Application for review dismissed
- 2.Applicant to bear the costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.