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ELCDismissedNot stated in the judgment provided· [2022] KEELC 216 (KLR)

Mwenda Njogu & 2 others v Elizabeth Kathure Matere [2022] KEELC 216 (KLR)

Environment and Land Court
27 April 2022
2,612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reopen a land dispute because the losing party raised new arguments too late and blamed its lawyer without justification.

What this practically means

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Executive summary

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This first-appeal judgment of the Environment and Land Court at Meru arose from a suit in which the respondent (plaintiff) obtained judgment against the appellants restraining interference with her ownership and occupation of Plot No. 37A Mikumbune Market. The trial court found trespass proved and granted a permanent injunction. The appellants' application dated 21 May 2019 for review, or in the alternative a trial de novo and a locus in quo visit, was dismissed by a ruling dated 5 February 2020. On appeal, the appellants argued the trial court failed to exercise its discretion judicially, ignored their request for a scene visit, and wrongly visited mistakes of former counsel on them. The High Court framed three issues: whether sufficient reasons for review existed, whether the suit should be reopened de novo, and whether a locus visit was deserved. Relying on the principle that parties are bound by their pleadings, the court found the defence was a mere denial never amended to raise the plot-locality issue. The appellants had been advised by their advocates of the need for a scene visit as early as March 2016 but never sought one before judgment; the map supporting the review application was undated, unverified and never exhibited. The OCS Nkubu Police Station report detailing the plots was produced without objection. The court held the appellants failed to discharge the burden of proof and were estopped from blaming counsel. The appeal was dismissed with costs.

Key legal issues

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01

Whether the application dated 21.5.2019 satisfied the grounds of review under Section 80 of the Civil Procedure Act and Order 45

Holding

It did not; the alleged grounds were known to the appellants during trial, were not pleaded, and the supporting map was undated, unverified and never part of their documents

Reasoning

Section 80 and Order 45 permit review for error apparent on the face of the record, discovery of new and important material, or other sufficient reasons. The appellants' claim of plot confusion was never specifically pleaded; their defence was a mere denial. Their former advocates had advised a scene visit in the replying affidavit of 9.3.2016, yet no such request was made before judgment. The map annexed to the review application was undated, unverified and never exhibited.

p. 3
02

Whether the mistake of former counsel justified reopening the suit or review

Holding

No; the case belonged to the appellants, who were advised by counsel and are estopped from denying knowledge of what was required

Reasoning

The court found the record showed the appellants were advised by their advocates of the need for a scene visit as early as the replying affidavit of 9.3.2016. They testified without producing their listed exhibits and never sought an adjournment to call county government evidence. It is the duty of parties, not lawyers, to procure witnesses and documents.

p. 3
03

Burden of proving the locality and distinctness of the plots

Holding

The appellants failed to discharge it; the report forwarded to the OCS Nkubu Police Station was produced without objection and established the plot details

Reasoning

Applying the rule that he who alleges must prove, the court noted the OCS report of 15.1.2016 clearly detailed the two plots and was produced without objection. The 3rd appellant admitted a scene visit by the county officer and did not dispute the respondent's ownership and plot verification documents. The appellants were not even aware who owned Plot No. 31A.

p. 4

Legal principles established

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  • A party seeking to reopen a case or obtain review must lay a basis and give reasons for such drastic orders
  • Parties are bound by their pleadings and issues flow from the pleadings
  • Mistakes of counsel cannot be relied upon where the party itself was clearly advised and the information was within its own knowledge

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Constitution of Kenya, 2010Articles 20(3)(b), 48, 50(1), 159(1)(d)
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45

Cases cited (12)

  • Caltex oil Kenya Ltd vs Rono Ltd
    (2016) eKLR
  • Josiah Mwangi Mutero & another vs Rachel Wagithi Mutero
    (2016) eKLR
  • M’Ikiugu M’Murithi & 2 others vs Joseph M’Nkanata M’Murithi
    Meru HCC No. 21 of 1989
  • Suleiman Murunga vs Nilestar Holdings Ltd & another
    (2015) eKLR
  • Henry Mwobobia vs Muthuri Karauri & another
    Meru HCC No. 104 of 1991
  • Evans Bwire vs Andrew Nginda
  • Stephen Githua Kimani vs Nancy Wanjiru Waruingi T/A Providence Auctioneers
    (2016) eKLR
  • Sadar Mohamed vs Charan Singh & another
    (1959) EA 793
  • NBK Ltd vs Ndugu Njau
    (1997) eKLR
  • Peters vs Sunday Post Ltd
    (1958) E.A 424
  • IEBC vs Stephen Mule Mutinda & 3 others
    (2014) eKLR
  • Rhoda Kiilu vs Jianx (citing Raila vs IEBC)
On appeal from
Magistrates' Court (trial court)
Not stated
Jurisdiction invoked
First appeal from the subordinate court's judgment and ruling on review

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, "Mwenda Njogu & 2 others v Elizabeth Kathure Matere [2022] KEELC 216 (KLR)", Case Analysis (2022). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/216/eng@2022-04-27

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