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ELCDismissed· [2022] KEELC 2488 (KLR)

Njoki v Njuguna & 4 others (Environment & Land Case 276 of 2017) [2022] KEELC 2488 (KLR)

Environment and Land Court
14 July 2022
4,061 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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By a Notice of Motion dated 13th May 2021 under Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, the Plaintiff/Applicant sought review and setting aside of the judgment of Lady Justice Kemei delivered on 2nd May 2019, which had dismissed his suit and declared that he holds the suit property LOC 2/Gacharage/1129 in trust for himself and the Defendants in equal shares. He also sought admission of new evidence from a former area Chief, Joseph Mwangi, the Green Card for a neighbouring parcel, declarations that the property was a gift inter vivos and his sole ownership, vacation of the trust declaration, and eviction of the Defendants. The 1st and 2nd Defendants opposed, arguing inordinate delay of over two years, a pending intended appeal rendering the review incompetent, that the evidence was not new, and that the application was an appeal in disguise. The court framed two issues: whether the grounds for review were met, and whether stay ought to be granted. It held that the Applicant could pursue review since his appeal was not properly filed and stay had been denied, following Nduati v Mukami. However, the two-year delay was inordinate and unexplained, and the purported new evidence was within the Applicant's knowledge before judgment, so due diligence was not demonstrated. The application was dismissed entirely with costs to the 1st and 2nd Defendants.

Key legal issues

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01

Whether an application for review is maintainable notwithstanding a pending intended appeal

Holding

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.

Reasoning

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.

p. 7
02

Whether the review application was made without unreasonable delay

Holding

No. The application was filed more than two years after judgment and the delay was inordinate and inadequately explained.

Reasoning

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.

p. 7
03

Whether there was discovery of new and important evidence not obtainable with due diligence

Holding

No. The Applicant knew of the witness (Joseph Mwangi, former Chief) and the evidence before judgment and knowingly omitted to present it.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The application dated May 13, 2021 is found not merited and is denied and dismissed entirely
  2. 2.Costs of the application awarded to the 1st & 2nd Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 45 Rule 1(b)
  • Court of Appeal Rules 2010Rule 52
  • Court of Appeal Rules 2010Section 2(2)
  • Constitution of KenyaArticle 48

Cases cited (20)

  • Nasibwa Wakenya Moses v. University of Nairobi
    (2019) eKLR
  • Mbuni Dry Cleaners Ltd v. George Mugo Kagondu
    (2007) eKLR
  • Nzoia Sugar Co. Ltd v. West Kenya Sugar Ltd
    (2020) eKLR
  • George Kibata Vs George Mwaura & Another
    (2017) eKLR
  • Ivita v. Kyumbu
    (1984) eKLR 441
  • Alphine Fine Foods Ltd v. Horeca Kenya Ltd & 4 others
    (2021) eKLR
  • Dorothy Wafula vs Hellen Nekesa Nielsen & Paul Fredrick Nelson
    (2017) eKLR
  • Rebecca Nyambura v. Kiragu Harun
    (2008) eKLR
  • P.K.A v. H.S.A & Another
    (2017) eKLR
  • Belinda Muras & 6 others vs. Amos Wainaina
    (1978) KLR
  • Judiciary of Kenya v. Three Star Contractors Ltd
    (2020) eKLR
  • Omulele & Tololo Advocates vs. Mount Holdings Ltd
    (2018) eKLR
  • Kenya Ports Authority v. Obendele
    (2009) KLR 364
  • Lakhamshi Bros Ltd v Rajah & Sons
    [1966] EA 313
  • Somani's v Shirinkhanu (No 2)
    [1971] EA 79
  • Origo & Another vs. Mungala
    (2005) 2KLR 307
  • Ndirangu –V- Commercial Bank of Africa
    (2002) 2 KLR, 603
  • Nduati vs. Mukami
    (2002) 2 KLR, 778
  • Kennedy Mokua Ongiri vs John Nyasende Mosioma & Florence Nyamoita Nyasende
    [2022] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, High Court of Kenya Nairobi Judicial Review Division Misc. Application No. 317 of 2018
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

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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, "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.