Hosea Nyandika Mosagwe & 2 others v County Government of Nyamira [2022] KEELC 869 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a review application because a post-judgment valuation report isn't new evidence, and no decree was attached.
What this practically means
#Executive summary
#Key legal issues
#Whether a valuation report obtained after judgment amounts to discovery of new and important matter or evidence justifying review
It does not; due diligence is not required to instruct a valuer, and the report was not in existence when the cause of action arose
The court reasoned that the suit was one in negligence and that the plaintiffs could have obtained a valuation at any time before judgment. The report is a document created after a party decides to sue, so it cannot qualify as matter which, after due diligence, was not within the applicants' knowledge or could not be produced when the decree was passed. Its absence was attributable to poor pleading, not to discovery of new matter.
Whether the application satisfied the grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1
It did not; allowing it would amount to re-opening the case afresh, contrary to the principle that litigation must come to an end
Relying on the authorities on review, the court held that review is restricted to the grounds enumerated in Order 45 Rule 1, that 'any other sufficient reason' must be analogous to the specified grounds, and that subsequent events or poorly pleaded material cannot be used to correct an erroneous view. Presenting all facts and documents at trial is a party's duty; piecemeal litigation is discouraged.
Whether the application was procedurally regular
The application was fatally defective for failure to annex a formal extracted decree or order sought to be reviewed
The court adopted the holding in Suleiman Murunga v Nilestar Holdings Limited that annexing a formal extracted decree or order is a prerequisite to bringing an application within Order 45. No such decree was attached to the present application, which therefore could not properly be entertained before the court.
Legal principles established
#- A valuation report prepared after a suit is filed does not constitute discovery of new and important matter or evidence for purposes of review under Order 45 Rule 1
- An applicant for review must annex a formal extracted decree or order sought to be reviewed; failure renders the application fatally defective
- The ground of 'any other sufficient reason' for review must be analogous to the other specified grounds
- Review will only be allowed on strong grounds where its effect would not amount to re-opening the case afresh
Court orders
#- 1.The Plaintiffs'/Applicants' Application dated 21/12/2021 is dismissed with costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act Cap 21 and Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hosea Nyandika Mosagwe & 2 others v County Government of Nyamira [2022] KEELC 869 (KLR)", Case Analysis (2022). Application dated 21/12/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/869/eng@2022-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.