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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 3483 (KLR)

Tenai v Kirongo (Environment & Land Case 99 of 2021) [2022] KEELC 3483 (KLR)

Environment and Land Court
29 July 2022
MMM. N. Mwanyale
1,863 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff/applicant, Esther Tenai, moved the Environment and Land Court at Kapsabet by notice of motion dated May 27, 2022 seeking review of the court's ruling of May 26, 2022, in which she had been found in contempt of court and liable to be committed to civil jail for failing to file submissions opposing a contempt application. She contended that her submissions had in fact been filed electronically on April 1, 2022, and sought their deemed filing together with variation or setting aside of the contempt orders. The respondent, Rosalia Chematia Kirongo, opposed the motion, contending that the submissions were filed outside court-ordered timelines, that no receipt proving payment of filing fees was exhibited, and that submissions are not evidence but mere advocacy. The court framed a single issue: whether the applicant met the threshold for review under section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules, namely discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason. The alleged new evidence failed because the applicant did not exhibit a filing receipt and thus did not discharge her burden under section 107 of the Evidence Act. However, on the court's own motion a surveyor's report had been directed, filed on July 27, 2022, and uncontroverted by the respondent, which confirmed that the disputed portions were being utilized by the respondent's son and that the applicant remained in occupation of her own portion. The court held this qualified as 'any other sufficient reason', found the applicant was not in contempt of the status quo orders, and allowed prayer 3, setting aside and/or reviewing the orders of May 26, 2022 with all consequential orders.

Key legal issues

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01

Whether the applicant met the threshold for review of the ruling of May 26, 2022 finding her in contempt

Holding

The ground of newly discovered submissions failed for want of proof of filing, but the surveyor's report showing continued occupation by the respondent's son constituted 'any other sufficient reason' warranting review

Reasoning

The court outlined the review grounds under section 80 of the Civil Procedure Act and order 45 rule 1. The alleged new evidence (submissions of April 1, 2022) was unproven as no filing receipt was exhibited. However, a court-directed surveyor's report, uncontroverted by the respondent, confirmed the disputed portion was being utilized by the respondent's son and the applicant had not been evicted. The court found the applicant was not in contempt since she was in possession of her portion, and this qualified as sufficient reason for review.

p. 4

Legal principles established

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  • Review may be granted under section 80 of the Civil Procedure Act and order 45 rule 1 upon discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason
  • A party alleging filing of a document bears the burden of proving it, and filing entails payment of fees evidenced by a receipt

Court orders

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  1. 1.Prayer 3 of the notice of motion dated May 27, 2022 allowed
  2. 2.The orders issued on May 26, 2022 with all consequential orders set aside and/or reviewed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50; Article 159(2)(b) and (d)
  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 42 rule 6; Order 45 rule 1; Order 51 rules 1 and 3
  • Evidence ActSection 107

Cases cited (3)

  • Daniel Toroitich arap Moi vs Mwangi Stephen Muereithi
    (2014) eKLR
  • Khalif Sheik Adan vs AG
    (2019) eKLR
  • Afit Kumar Rath vs State of Orisa and others
Jurisdiction invoked
Article 50, 159(2)(b) and (d) of the Constitution; section 80 of the Civil Procedure Act; order 45 rule 1 and order 51 rules 1 and 3 of the Civil Procedure Rules, 2010

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, "Tenai v Kirongo (Environment & Land Case 99 of 2021) [2022] KEELC 3483 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3483/eng@2022-07-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.