African Express Airways(Kenya)Ltd v Kenya Airways PLC (Environment and Land Case Civil Suit E282 of 2021) [2022] KEELC 22 (KLR)
The bottom line
#The Environment and Land Court dismissed a bid to review its ruling, confirming that 'new evidence' claims require proof of genuine due diligence in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Threshold for review based on discovery of new and important matter or evidence
The Applicant failed to meet the threshold under Order 45 Rules 1 and 3 of the Civil Procedure Rules; it merely stated it received a letter from the Cabinet Secretary without explaining the circumstances or showing due diligence
Order 45 Rule 3(2) requires strict proof that the new matter was not within the applicant's knowledge or could not be adduced when the order was made. The Applicant did not indicate who requested the Cabinet Secretary's letter, when, or why the information could not have been obtained before the earlier hearing. Authorities relied on emphasise that review is not a second innings for a negligent litigant.
Whether the alleged new evidence would have changed the outcome
No - even if the Respondent's title were fake, the Applicant could not evict the Respondent without due process, and the injunction would still have issued
The court held that the so-called new evidence would not have produced a different decision, because self-help eviction without due process is impermissible regardless of the validity of the Respondent's title. The court also doubted which title was fake, noting the Respondent's title was registered first under Grant No. 69013.
Authenticity of the Respondent's title on the material presented
The evidence cast doubt on the claim that the Respondent's title was fake; chronology showed the Respondent's title was registered first under Grant No. 69013
The title allegedly issued to Jimmy Angwenyi in Thika was issued April 10, 1996 and registered April 26, 1996, whereas the Respondent's title was issued and registered June 13, 1995. The court found it curious that it was the Respondent's earlier-registered title said to be fake, and noted the Applicant failed to produce its own new title and search during the earlier hearing.
Legal principles established
#- A party seeking review on the ground of discovery of new evidence must show, with strict proof, that the evidence was not within its knowledge and could not be produced despite exercise of due diligence at the time of the decree or order
Court orders
#- 1.The application dated December 1, 2021 is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Order 45 Rules 1 and 3 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Express Airways(Kenya)Ltd v Kenya Airways PLC (Environment and Land Case Civil Suit E282 of 2021) [2022] KEELC 22 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/22/eng@2022-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.