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ELCDismissedNot stated in judgment (Notice of Motion dated 18th September 2020)· [2021] KEELC 3393 (KLR)

Dormel Gowns Limited v Peter Mbugua Kimani [2021] KEELC 3393 (KLR)

Environment and Land Court
29 April 2021
1,108 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to reopen a decided land case because the new letter the applicant produced did not actually prove what she claimed.

What this practically means

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Executive summary

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This was a Notice of Motion dated 18th September 2020 by the plaintiff, Margaret Wairimu Magugu, seeking review, variation or setting aside of the court's judgment delivered on 28th May 2020, brought under Sections 1, 1A, 3, 3A and 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, on the ground of discovery of new and important evidence. The applicant relied on a letter dated 11th August 2020 from the Agricultural Finance Corporation, signed by John Kithinji for the Managing Director, confirming that loan account No. 271190 (Peer Mbugua Kimani) had been fully settled, closed and archived, and that security documents had been delivered to the firm of S.W. Waweru & Co. Advocates on 15th December 1992. She argued this evidence, unavailable at trial, would lead to an entirely new decision, since the central issue was whether loan arrears were settled in full by the advocate before his demise in 1999. She filed the application promptly on 18th September 2020 after receiving the letter on 11th September 2020. The defendant opposed, contending the issue of the Kshs.750,000/- payment was not new, having been considered by the court, and that failure to pay the purchase price by the completion date rendered the agreement a nullity. The court held that the letter did not state how much was paid nor confirm payment by the advocate, and did not meet the Order 45 rule 1 threshold. The application was found to be an abuse of process, lacked merit, and was dismissed with costs to the defendant.

Key legal issues

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Whether the applicant established discovery of new and important matter or evidence under Order 45 rule 1

Holding

The application fails because the AFC letter does not confirm payment of the loan by S.W. Waweru & Co. Advocates and thus is not new and important evidence

Reasoning

The court noted that the judgment had found the full consideration was not paid to the vendor. The letter from the Agricultural Finance Corporation, signed by John Kithinji for the Managing Director, did not state the amount of the loan paid nor confirm that payment was made by the advocate. It only confirmed the account was settled and security documents released on an undertaking in December 1992. It therefore did not meet the review threshold.

p. 2

Legal principles established

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  • A document that does not confirm the fact sought to be proved does not constitute new and important evidence warranting review under Order 45 rule 1 of the Civil Procedure Rules

Court orders

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  1. 1.The Notice of Motion dated 18th September 2020 is dismissed with costs to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3, 3A and 80(a)
  • Civil Procedure (Revised) Rules, 2010Order 45 rule 1

Cases cited (1)

  • Republic vs Public Procurement Administrative Review Board & 2 Others
    [2018] eKLR
Jurisdiction invoked
Sections 1, 1A, 3, 3A and 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, 2010

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, "Dormel Gowns Limited v Peter Mbugua Kimani [2021] KEELC 3393 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 18th September 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3393/eng@2021-04-29

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