Turbo Munyaka Co-operative Society Limited v John Mbugua Njoroge & 7 others [2022] KEELC 2057 (KLR)
The bottom line
#The court refused to overturn a 2018 land judgment because the 'new evidence' was the defendants' own old document, filed three years late.
What this practically means
#Executive summary
#Key legal issues
#Whether the discovery of the Plaintiff's alleged change of name constituted new and important matter or evidence justifying review
No; the certificate of change of name was produced by the Defendants themselves at the hearing as D. Exhibit 11 and was squarely dealt with in the original judgment, so it was not new matter discovered at execution
The court reviewed the impugned judgment and found the issue of the Plaintiff's names was pertinent and settled at judgment stage. The certificate of change of name had been marked DMFI 1 during cross-examination on 06/07/2015 and produced by consent as D. Exhibit 11 on 03/10/2018. It was within the Defendants' knowledge from the inception of the suit, so the review threshold of discovery of new and important matter after due diligence was not met, and the application failed on that limb.
Whether the delay of three years in bringing the application was excusable
The delay was unreasonably long, inexcusable and unexplained
Although the court found it unnecessary to consider the remaining grounds after failing the first limb, it noted in passing that the three-year delay after delivery of judgment was unreasonably long and unexplained, the asserted reason (discovery at execution) being a lie given the document's provenance as an exhibit. Order 45 requires applications for review to be brought without unreasonable delay.
Whether improper invocation of constitutional and general provisions vitiated or aided the application
Article 159(2)(d) would excuse failure to invoke the correct provisions, but the substantive review grounds under Section 80 and Order 45 were not met; the citation of Articles 10, 40, 159(2)(d), 259 and omnibus phrases was improper for interlocutory applications
The court held that interlocutory applications differ from constitutional petitions and parties should invoke the specific statutory provisions empowering the court, not constitutional articles or the phrase 'all other enabling provisions of the law'. Guided by Supreme Court and Court of Appeal authority on Article 159(2)(d), the court nonetheless considered the application on its merits under the correct provisions rather than dismissing it on procedural technicality.
Legal principles established
#- Material qualifying as new and important evidence for review must be of such a nature that it could not have been discovered with due diligence and was not available to the applicant or the court
- A party aggrieved by a finding in a judgment should appeal rather than seek review by presenting the same issue as novel
Court orders
#- 1.The Defendants' Notice of Motion dated 2/11/2021 seeking review and/or setting aside of the judgment delivered on 15/11/2018 is dismissed in its entirety
- 2.Costs of the Application awarded to the Plaintiff
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rules (application for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Turbo Munyaka Co-operative Society Limited v John Mbugua Njoroge & 7 others [2022] KEELC 2057 (KLR)", Case Analysis (2022). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2057/eng@2022-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.