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ELCDismissedELC. Appeal No. 3 of 2020 (Formerly Nairobi ELC Appeal No. 85 of 2015)· [2021] KEELC 3127 (KLR)

Ndungu Thiongo v Godfrey Kihuha Gichuhi & another [2021] KEELC 3127 (KLR)

Environment and Land Court of Kenya
26 May 2021
2,747 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that you cannot use review to fix a case you could have handled properly the first time.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kajiado against a ruling of Hon. P. A. Olenga (P.M) delivered on 3rd May 2012 in Kajiado SRM Civil Case No. 364 of 2002. The ruling had dismissed the Appellant's Notice of Motion seeking stay of execution, review and/or setting aside of the decree, and substitution of the Public Trustee (administrator of the estate of Michael Gichuhi Muiru) as defendant. The underlying suit had been brought by the Respondents seeking damages and a permanent injunction for trespass, and judgment had been entered in their favour on 6th November 2007 after the Appellant declined to testify. The Appellant argued the Public Trustee, appointed administrator in 1998, should have been sued in place of himself. The Respondents countered that the review application came seven months late, was an afterthought, and that no new matter had been discovered. The court, Hon. Christine Ochieng (J), framed three issues: whether the magistrate erred, whether the appeal was merited, and costs. Relying on section 80 of the Civil Procedure Act, Order 45 rule 1(1) of the Civil Procedure Rules and authorities including National Bank of Kenya Ltd v Ndungu Njau and Pancras T. Swai v Kenya Breweries Ltd, the court held the Appellant knew of the Public Trustee's 1998 appointment before the 2004 suit, produced no evidence of discovery, and failed the review threshold under sections 107 and 108 of the Evidence Act. The appeal was dismissed with costs to the Respondents, the trial court's ruling being upheld.

Key legal issues

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Whether the trial magistrate erred in dismissing the Appellant's application for review, stay of execution and substitution of the Public Trustee as defendant

Holding

The magistrate did not err. The Public Trustee was appointed administrator in 1998, before the 2004 suit, and the Appellant never disclosed when he discovered this, declined to testify, and failed to present evidence to controvert the Respondents' case.

Reasoning

The court reviewed section 80 of the Civil Procedure Act and Order 45 rule 1(1) of the Civil Procedure Rules and authorities on review. It found the alleged discovery was not new: the Appellant admitted the Public Trustee was appointed in 1998 while the suit was filed in 2004. He failed to testify or lay a basis for his defence before judgment. The court associated itself with authorities holding that review addresses factual discovery or errors apparent on the face of the record, not a re-hearing or a different view of the law.

p. 3

Legal principles established

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  • Review lies only before the court that passed the decree or order, and requires discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, sought without unreasonable delay.
  • Grounds of review relating to discovery of new and important matter concern issues of fact emerging from evidence, not issues of law.
  • A party who fails to adduce evidence in support of averments in a defence cannot rely on them, having regard to sections 107 and 108 of the Evidence Act.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents.
On appeal from
Chief Magistrate's Court at Kajiado
Kajiado SRM Civil Case No. 364 of 2002
Jurisdiction invoked
First appeal from the ruling of the Principal Magistrate in Kajiado SRM Civil Case No. 364 of 2002 (statutory appeal to the Environment and Land Court)

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, "Ndungu Thiongo v Godfrey Kihuha Gichuhi & another [2021] KEELC 3127 (KLR)", Case Analysis (2021). ELC. Appeal No. 3 of 2020 (Formerly Nairobi ELC Appeal No. 85 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3127/eng@2021-05-26

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