Johnstone Ndege & another v Joseph Kang’ethe Mbugua & another [2021] KEELC 3390 (KLR)
The bottom line
#Kenya's Environment and Land Court threw out a magistrate's order reviving a dismissed land suit, ruling the review application relied on old evidence and unexplained delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court correctly exercised its discretion in allowing the review application
The discretion was exercised erroneously; the appeal was allowed and the review orders set aside
The application was for review, not an appeal. The respondent was bound to satisfy the conditions in Order 45. The alleged new evidence, the certificate of title, was issued in August 2014, was in the respondent's possession, and was annexed to and considered in his earlier reinstatement application dismissed on 23rd September 2015. The alleged discovery of new matter was therefore not strictly proved. Further, the review was brought three years after the order, with no explanation, and the magistrate effectively sat on appeal over a court of equal status.
Whether the title deed constituted new and important matter or evidence for purposes of review
It did not; it was part of the record when the order sought to be reviewed was made
The certificate of title was issued on 15th August 2014 and was used by the respondent as an annexure to his affidavit in support of the application dated 2nd December 2014, which was dismissed on 23rd September 2015. It was therefore within his knowledge and producible at the time the order was made. Under Order 45 Rule 3(2), such an allegation must be strictly proved, and it was not.
Whether the lower court erred in granting a temporary injunction without considering the principles for its grant
The court erred; delay and indolence disentitled the respondent to the equitable remedy of injunction
The ruling contained no indication that the lower court considered the principles for granting a temporary injunction or the arguments for and against it. The delay in prosecuting the suit and in bringing the review application, which was lumped with the injunction application, should have disentitled the respondent to an equitable remedy. The injunction order therefore fell with the review orders.
Legal principles established
#- An application for review on the ground of discovery of new matter or evidence requires strict proof that the matter or evidence was not within the applicant's knowledge or could not be produced when the order was made
- A court cannot sit on appeal over, or review, the decision of a court of the same status on the same grounds
- An application for review must be brought without unreasonable delay, and inordinate unexplained delay disentitles the applicant to review
- An appellate court will interfere with the exercise of discretion where the lower court took into account irrelevant matters, failed to take into account relevant matters, or misapprehended the law, resulting in a wrong decision
Court orders
#- 1.The consolidated appeals are allowed
- 2.The ruling and orders made by Hon. Grace Mmasi, SPM on 18th January, 2019 are set aside and in place thereof the respondent's Notice of Motion application dated 23rd November, 2018 is dismissed
- 3.The respondent's suit against the appellants in the lower court shall remain dismissed
- 4.The appellants in the two appeals shall have the costs of the appeals and of the lower court application
- On appeal from
- Chief Magistrate's Court (lower court)
- CMCC No. 13297 of 2006
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's ruling in CMCC No. 13297 of 2006 (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnstone Ndege & another v Joseph Kang’ethe Mbugua & another [2021] KEELC 3390 (KLR)", Case Analysis (2021). ELC Appeal No. 3 of 2019 (consolidated with ELC Appeal No. 28 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3390/eng@2021-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.