Ngomeni Swimmers Limited v Said & 8 others; St. Patrick School Limited (Interested Party) (Civil Suit 15 of 2010) [2022] KEELC 3048 (KLR)
The bottom line
#A Kenyan land court dismissed an attempt to introduce new evidence after losing a case, confirming you cannot pursue both appeal and review.
What this practically means
#Executive summary
#Key legal issues
#Whether the Notice of Motion dated 9th November 2021 was a disguised application for review
The court held it was a disguised review and abuse of process, since the suit had been dismissed for lack of evidence and the applicant sought to introduce new evidence to establish ownership
The court found the applicant was attempting to bring in evidence of Ministry of Lands records after judgment to stop the court from determining the respondents' pending review application. The orders sought were in substance a review of the judgment, not a mere procedural application. The court agreed with the respondents that this was an abuse of court process warranting dismissal.
Whether review is available to a party who has filed an appeal
Review is not available to an applicant who has filed an appeal, per Order 45 rule 2 of the Civil Procedure Rules
The applicant had filed a Notice of Appeal dated 5th March 2021. Under Order 45(2), a party who is appealing cannot apply for review where the ground of appeal is common to the applicant. The procedures of review and appeal are mutually exclusive; a party must elect one remedy and there is no middle ground.
Whether the additional evidence sought could be admitted after judgment
No - the applicant failed to establish the documents were not within its knowledge at the hearing, as they were primary documents needed to prove ownership
The evidence sought (Ministry of Lands records for the four Mambrui plots) could have been readily availed at the hearing of the main suit. No explanation or due diligence was offered for the failure to produce it earlier, so admitting it post-judgment would amount to a backdoor review.
Legal principles established
#- An application for review is not available to a party who has already filed an appeal against the judgment
- An aggrieved party must elect between review under Order 45 and appeal; there is no middle ground
- The power of review can only be exercised for correction of a patent error of law or fact, not for a fresh hearing or to introduce fresh evidence
Court orders
#- 1.The application dated 9th November 2021 is dismissed with costs to the Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit; application under Order 45 and Section 80 of the Civil Procedure Act framework
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngomeni Swimmers Limited v Said & 8 others; St. Patrick School Limited (Interested Party) (Civil Suit 15 of 2010) [2022] KEELC 3048 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3048/eng@2022-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.