Kazungu Baya Kitunga & 13 others v Yaa Baya & 2 others [2022] KEELC 2138 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Unreasonable delay in filing the review application
The application filed more than 3½ years after judgment was filed after unreasonable delay and must fail on that ground alone; the applicant's claim of ignorance of the judgment was doubted given his conduct in filing another suit in March 2020
Judgment was delivered on 13 July 2017 and the application filed on 23 February 2021. Absence of counsel at delivery was no excuse for over three years of inaction, since a registry check would have revealed the judgment. The applicant's March 2020 suit in Malindi against some respondents showed he knew he had lost this case, which the court characterized as an abuse of process.
Whether the 2007 High Court ruling quashing the Tribunal award was new and important evidence
It was not new evidence: the ruling was delivered in 2007, the applicant testified in 2011, and it was his duty to avail it; it therefore does not meet the Order 45 Rule 1 threshold
The applicant pleaded in his defence that he had filed judicial review proceedings to quash the Tribunal award. Having testified in 2011, four years after the High Court ruling, he could not fault the court for finding no evidence of the judgment. Evidence producible at trial with due diligence is not discoverable new matter for review purposes.
Error apparent on the face of the record
No error apparent: the judgment was not hinged solely on the Tribunal award, as the court made independent findings that the suit land was ancestral/family land which the 1st defendant could not sell in its entirety
The court combed through the 2017 judgment and found independent evidentiary findings on the title deeds and the 1st plaintiff's testimony on trust and ancestral land, unrelated to the Tribunal award. Even without evidence that the award had been quashed, the judge would have reached the same conclusion, so the applicant could not allege he was misled.
Locus standi of the respondents for suing without letters of administration
The locus issue existed all along and had to be raised before judgment; the court is now functus officio and the point can only be pursued on appeal
The applicants' complaints, including want of locus standi, are matters going to the correctness of the judgment. Review under Order 45 is not a substitute for appeal; where the alleged grounds would sustain an appeal, they cannot found a review once the court has rendered its decision and become functus officio.
Competence of the replying affidavit
The replying affidavit, sworn by one person but signed by another, is incompetent and was struck out and disregarded
The introductory part named Kazungu Baya Kitunga as deponent while the jurat showed Karisa Baya Kitunga signed it. Following the Supreme Court decision in Gideon Sitelu Konchellah vs Julius Ole Sunkuli, an affidavit not signed by the deponent is incompetent and could not be considered in opposing the application.
Legal principles established
#- An affidavit is incompetent where it is sworn by one person and signed by another; it can only be competent if sworn and signed by the same person
- A review application under Order 45 Rule 1 must be made without unreasonable delay, and mere absence from court when judgment is delivered does not excuse a party who fails to check the status of the matter
- Evidence that was available to a party at the time of trial cannot qualify as new and important matter or evidence for purposes of review
- Issues such as locus standi that existed before judgment cannot be raised on review once the court is functus officio; they must be pursued on appeal
Court orders
#- 1.The replying affidavit sworn in the name of Kazungu Baya Kitunga but signed by Karisa Baya Kitunga is struck out as incompetent
- 2.The 2nd defendant's Notice of Motion application dated 23 February 2021 seeking review of the judgment delivered on 13 July 2017 is dismissed
- Jurisdiction invoked
- Sections 1A, 1B and 80 of the Civil Procedure Act, Cap 21 and Order 45 Rule 1(1)(a), Order 9 Rules 9 and 10, Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kazungu Baya Kitunga & 13 others v Yaa Baya & 2 others [2022] KEELC 2138 (KLR)", Case Analysis (2022). Not stated in judgment (suit commenced by plaint filed 30 November 2005; application dated 23 February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2138/eng@2022-01-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.