Mwanzi v Amita (Environment & Land Case 459 of 2014) [2023] KEELC 328 (KLR)
The bottom line
#The Environment and Land Court in Kakamega dismissed a bid to reopen a land case, confirming that evidence already used at trial is not 'new' and you cannot pursue review while an appeal is pending.
What this practically means
#Executive summary
#Key legal issues
#Whether the Provincial Appeal Disputes Tribunal decision constituted new and important evidence for review
It was not new evidence; it was included in the defendant's list of documents dated February 26, 2015 and produced at trial as defence exhibit number 2, and was considered in the judgment.
The record showed the defendant had filed a list of documents pre-trial listing the proceedings of the Western Province Appeals Committee, and the decision was produced as defence exhibit number 2. The original judgment expressly considered the committee's decision. Evidence already before the court and considered cannot qualify as new and important matter discovered after the decree under Order 45 rule 1.
Whether review was available given the defendant's notice of appeal
Review was not available because the defendant filed a notice of appeal dated August 2, 2021 against the whole judgment.
Both section 80 of the Civil Procedure Act and Order 45 rule 1 preclude review where an appeal has been preferred. The defendant's personally signed notice of appeal was paid for on August 3, 2021. Once an appeal exists, the remedy sought through review merges in the appeal; the two remedies cannot co-exist in respect of the same decree.
Legal principles established
#- Review is not available where an appeal has been preferred against the decree or order sought to be reviewed; an appeal and an application for review cannot co-exist.
- A review application grounded on discovery of new evidence must be approached with great caution and cannot be a vehicle for a losing party to re-litigate.
Court orders
#- 1.Notice of motion dated July 7, 2022 dismissed
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwanzi v Amita (Environment & Land Case 459 of 2014) [2023] KEELC 328 (KLR)", Case Analysis (2023). Notice of motion dated July 7, 2022 (arising from suit over land parcel Isukha/Shiswa/1506). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/328/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.