In re Estate of John Douglas Omondi (Deceased) (Environment & Land Case 143 of 2021) [2022] KEELC 110 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application met the threshold for review under Section 80(a) of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
The application failed. The Defendant did not demonstrate an error apparent on the face of the record; the materials annexed were new evidence intended for trial, not overlooked facts.
Review is discretionary and must be exercised judiciously. It lies for discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and cannot be a fresh hearing of arguments. The court found the annexures 'MWT 2 and 3' were new evidence introduced after the ruling, and that the disputed issues should be canvassed at full trial rather than at the interlocutory stage. The proper provision for varying an injunction was Order 40 Rule 7.
Whether the Plaintiff should provide security of costs as an alternative to allowing construction to continue
No. The Defendant, as the author of the nuisance, could not claim relief arising from her own tortious act.
Relying on the maxim ex turpi causa non oritur actio, the court held that the Defendant should be unable to pursue legal relief and damages arising from her own tortious act of causing the nuisance complained of by the Plaintiff. She had been found on the wrong side of the law and compelled to take precautionary measures which she had to date failed to comply with.
Who bears the costs of the application
The Plaintiff/Respondent is entitled to costs of the failed application.
Under Section 27 of the Civil Procedure Act, costs follow the events. The events are the results or outcome of litigation. The application having failed, the Plaintiff was entitled to costs, which, being at the interlocutory stage, were directed to be in the cause.
Legal principles established
#- Review is not an appeal; it must be confined to error apparent on the face of the record and re-appraisal of the evidence would amount to appellate jurisdiction
- New evidence introduced after a ruling does not constitute an error or fact overlooked for purposes of review
- An application to discharge, vary or set aside an order of temporary injunction should be brought under Order 40 Rule 7 of the Civil Procedure Rules, 2010
Court orders
#- 1.That the order of temporary injunction issued in favour of the Plaintiff/Applicant restraining the Defendant/Respondent from trespassing on the property known as Land Reference Numbers Sub-division No. 9958/I/MN and continuing with the ongoing construction on the property known as Subdivision No. 9961/I/MN issued on 24th January, 2022 still subsists pending the hearing and determination of this suit
- 2.That pursuant to the Site Visit of 4th March, 2022, the parties be and is hereby urged to make efforts to adhere with the recommendations made from the said Site Visit report
- 3.That the matter be heard and determined within the next One (1) month from the date of the ruling, to be fixed for hearing on 7th June, 2022 with judgement delivered by 9th July, 2022
- 4.That the costs of the application are awarded to the Plaintiff/Respondent to be borne by the Defendant/Applicant
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63(e) & 80(a) of the Civil Procedure Act, Cap. 21; Order 45 Rules (1), (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of John Douglas Omondi (Deceased) (Environment & Land Case 143 of 2021) [2022] KEELC 110 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/110/eng@2022-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.