Ndungu Thiongo v Godfrey Kihuha Gichuhi & another [2021] KEELC 3127 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the trial magistrate erred in dismissing the Appellant's application for review, stay of execution and substitution of the Public Trustee as defendant
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.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.