Njoki v Njuguna & 4 others (Environment & Land Case 276 of 2017) [2022] KEELC 2488 (KLR)
The bottom line
#A Kenyan landowner lost his bid to overturn a 2019 judgment because he waited over two years and offered 'new' evidence he had known about all along.
What this practically means
#Executive summary
#Key legal issues
#Whether an application for review is maintainable notwithstanding a pending intended appeal
Yes. Since the Applicant's application for appeal was not properly filed and his application for stay pending appeal was denied, he could file for review of the judgment.
The Respondents argued a Notice of Appeal and pending extension-of-time application rendered the review incompetent. The court followed Nduati v Mukami, holding that the inherent power of the court to make orders necessary for the ends of justice is not limited by the Civil Procedure Act or Rules, and that where an appeal has not been determined on merits, the court may still review its original orders if the ends of justice demand.
Whether the review application was made without unreasonable delay
No. The application was filed more than two years after judgment and the delay was inordinate and inadequately explained.
The Applicant attributed the delay to contesting a bill of costs, but failed to acknowledge that the delay also arose from pursuing an appeal. Relying on Kennedy Mokua Ongiri v John Nyasende Mosioma, the court found that inordinate delay of more than two years would have defeated the review, and that successive applications on the same issue cannot be allowed to frustrate a decree holder, contrary to Article 48 of the Constitution on access to justice.
Whether there was discovery of new and important evidence not obtainable with due diligence
No. The Applicant knew of the witness (Joseph Mwangi, former Chief) and the evidence before judgment and knowingly omitted to present it.
The proposed witness had been present at family meetings and the Applicant knew of him before the hearing and knew of his transfer. Relying on Mativo J in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, mere discovery of new evidence is insufficient; due diligence must be shown. The court found the application an attempt to prolong the suit and deprive the Respondents of the fruits of their judgment.
Legal principles established
#- A party who has not properly preferred an appeal (the appeal not being properly filed and stay pending appeal having been denied) may apply for review of the judgment of the court that delivered it.
- Mere discovery of new or important matter or evidence is not sufficient ground for review; the applicant must show the evidence was not within its knowledge and could not, with due diligence, have been produced earlier.
- Inordinate, unexplained delay of over two years is fatal to an application for review.
Court orders
#- 1.The application dated May 13, 2021 is found not merited and is denied and dismissed entirely
- 2.Costs of the application awarded to the 1st & 2nd Defendants/Respondents
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules (review of the court's own judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoki v Njuguna & 4 others (Environment & Land Case 276 of 2017) [2022] KEELC 2488 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2488/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.