Rasto Gwiyo Mikaya v Charo Ruwa Mwagona & 5 others [2021] KEELC 3067 (KLR)
The bottom line
#A Kenyan court refused to reopen a 2005 land judgment, ruling that 14 years of delay and lack of diligence cannot be cured by a review application.
What this practically means
#Executive summary
#Key legal issues
#Discovery of new and important matter or evidence
The claim that Kilifi/Mtondia/77 had been sub-divided in 1999 did not qualify as new evidence discoverable only later, as the Defendants failed to show due diligence
The Defendants asserted the suit property had been sub-divided and new titles issued in 1999 before the suit was filed, and later sold to third parties. However, their Supplementary Affidavit did not respond to the Plaintiff's claim of lack of diligence, and there was no evidence they took any steps to verify the land's status even after learning they were no longer registered owners.
Error apparent on the face of the record
No error apparent was established; the 2005 judgment dismissed the suit because Settlement Fund Trustees' sanction was lacking, not because the sale was found not to have occurred
The Defendants argued the court omitted to order return of the property and title deed to the 1st Defendant despite finding the Plaintiff did not legally purchase it. The court held the earlier judgment fell short of eviction because of lack of SFT authorization, so no evident error existed on the record requiring no elucidation.
Unreasonable delay
The application filed 14 years after judgment was inordinately late, with no explanation for the 2015 search or the further four-year delay
The Defendants claimed discovery on 15th October 2015 upon conducting a search, but offered no reason for searching ten years after judgment, nor for the four further years before filing. Order 45 Rule 1 requires applications without unreasonable delay, which this plainly violated.
Res judicata and abuse of process
The application is res judicata, frivolous and misconceived, being an attempt to circumvent the striking out of Malindi ELC Case No. 54 of 2015
The Defendants had earlier filed Malindi ELC No. 54 of 2015 seeking cancellation of the Plaintiff's registration and vacant possession. The court had ruled that suit res judicata on 15th November 2017. The present review application was another attempt to relitigate the same issues and amounted to an abuse of court process.
Legal principles established
#- Review jurisdiction is limited to applications made without unreasonable delay on the grounds of discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason
- An error apparent on the face of the record is one evident per se and does not require detailed examination; a judgment cannot be corrected merely because it is erroneous in law or a different view was possible
- Review cannot be used to aid a party lacking diligence, nor for a fresh hearing or arguments
Court orders
#- 1.The Defendants' application dated 11th July 2019 for review is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rasto Gwiyo Mikaya v Charo Ruwa Mwagona & 5 others [2021] KEELC 3067 (KLR)", Case Analysis (2021). Malindi ELC (arising from Mombasa HCCC No. 453 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3067/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.