Mjomba & Family v Mwashigadi & another
The bottom line
#A Mombasa court refused to reopen a land judgment and gave the losing parties 60 days to comply or face fines and civil jail.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of March 23, 2022 should be reviewed on the ground of discovery of new evidence
The review application fails; mere discovery of new evidence is insufficient where due diligence is not demonstrated and no error apparent on the face of the record exists
The court applied section 80 of the Civil Procedure Act and Order 45 rule 1, adopting the principles in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya and Ajit Kumar Rath v State of Orisa. The defendants alleged the sketch plan produced by PW-5 was false and that no such plot exists, but did not show the evidence was undiscoverable earlier. The court confined itself to the material available at the original decision and held the proper recourse is appeal.
Whether the judgment debtors should be punished for contempt of the decree
The contempt application is merited since the judgment stands, but the court allowed 60 days for compliance before sanctions attach
Having dismissed the review application, the court held the judgment of March 23, 2022 still stands. The decree holders' application for committal was therefore merited. Rather than immediate committal for six months as sought, the court granted a 60-day compliance window, failing which a fine of Kshs 50,000 each and default committal to civil jail for one month would follow.
Legal principles established
#- A party seeking review must show that new matter or evidence was not within its knowledge and could not, with due diligence, have been produced earlier; otherwise the remedy is appeal
- In delivering judgment a court is confined to the material available at the time of the initial decision; subsequent events cannot vitiate it as an error apparent
Court orders
#- 1.The application dated August 22, 2022 for review is dismissed with costs
- 2.The defendants to comply with the court order issued on March 23, 2022 within the next 60 (sixty) days after service of the order, failure of which they will be cited for contempt and directed to pay a fine of Kshs 50,000/= each
- 3.In default of the fine, the defendants to be committed to civil jail for a period of one (1) month
- 4.The defendants to pay the costs of the application dated May 19, 2022
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A, 63(e) and 80 of the Civil Procedure Act; Order 22 rule 28, Order 45 rules 1 and 2 and Order 51 rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mjomba & Family v Mwashigadi & another", Case Analysis (2022). Environment & Land Case 176 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15183/eng@2022-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.