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ELCPartially AllowedEnvironment & Land Case 208 of 2016· [2023] KEELC 15855 (KLR)

Marina Nceece Mohamed v Michubu Karugui & another

Environment and Land Court
1 March 2023
1,980 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to pause or reopen a concluded land judgment, ruling that allegations without expert evidence cannot undo a decided case.

What this practically means

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Executive summary

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By an application dated November 25, 2022, the defendants sought leave for M. Kaberia Arimba & Co. Advocates to come on record, a stay of execution of the judgment delivered on November 9, 2022, and review of that judgment out of time with re-opening of the matter for further hearing. They contended the subject road was a public road existing on the ground and adjudication maps, and that the plaintiff had misled the court into relying on a doctored surveyor's report dated July 26, 2019. The plaintiff opposed, arguing the suit had been heard on merits, the court was functus officio, no appeal was pending, and the application was an abuse of process seeking a second bite at the cherry. On the first prayer, the court allowed leave for the new advocates. On stay, applying Order 42 rule 6 and James Wangalwa v Agnes Naliaka Cheseto, the court found no pending appeal and no particulars of prejudice or cogent evidence of substantial loss, and refused it. On review under section 80 of the Civil Procedure Act and Order 45 rule 1, the court held the applicants had had every opportunity at trial - including a consented locus visit on March 14, 2019 and surveyor and Deputy Registrar reports adopted by consent, which they failed to expunge in a ruling of May 20, 2020 not appealed - and produced no rival expert survey or forensic document examination supporting allegations of doctoring. Boundaries are authentically established only by registry index or cadastral maps. The application was dismissed with costs.

Key legal issues

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01

Stay of execution under Order 42 rule 6

Holding

Refused; no pending appeal and no demonstration of substantial loss, timeliness, security or prejudice.

Reasoning

The court restated the Order 42 rule 6 thresholds: substantial loss, timely filing, security and the interest of justice. There being no pending appeal, and no particulars of prejudice if the surveyor implemented the decree, the applicants failed to meet the threshold, relying on James Wangalwa v Agnes Naliaka Cheseto that mere allegation of loss without cogent evidence is insufficient.

p. 2
02

Review under section 80 CPA read with Order 45 rule 1

Holding

Refused; no sufficient reason established.

Reasoning

The applicants alleged the surveyor's report was doctored and that the respondent misled the court, but produced no rival expert surveyor's report or forensic document examiner's report. They never called expert witnesses at trial, never appealed the 20.5.2020 ruling adopting the reports, and claimed no newly discovered evidence discoverable with due diligence.

p. 3
03

Re-opening a concluded suit

Holding

The court cannot re-open a matter heard and determined on merits on conjecture; litigation must come to an end.

Reasoning

The court emphasized finality of judgments and that review is available only on known grounds. The applicants had every opportunity, including a consented locus visit and adopted reports, to present their case; piecemeal litigation and a second bite at the cherry were not permissible.

p. 4

Legal principles established

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  • A party is entitled to legal representation of their choice and may be granted leave to change advocates.
  • Substantial loss for stay of execution cannot rest on mere allegation but requires tangible and cogent evidence.
  • Only a registry index map or a cadastral map is the authentic basis for establishing boundaries.
  • A concluded suit heard on merits cannot be re-opened on speculation without expert or new evidence; review requires sufficient reasons.

Court orders

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  1. 1.Leave granted to the firm of M. Kaberia Arimba & Co. Advocates to come on record for the applicants
  2. 2.Prayer for stay of execution dismissed
  3. 3.Prayer for review out of time and re-opening of the matter dismissed
  4. 4.Application dismissed with costs

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 45
  • Survey Act
  • Land Act
  • Land Registration Act
  • Public Road and Roads of Access Act

Cases cited (5)

  • Republic v Public Procurement Administrative Review Board and 2 others
    (2018) eKLR
  • Evans Bwire v Andrew Nginda
    Civil Appeal No. 147 of 2006

    Review only on strong grounds, particularly where its effect would be to re-open the case for hearing afresh

  • Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers
    (2016) eKLR

    Approval of Evans Bwire on stringent grounds for review

  • James Wangalwa v Agnes Naliaka Cheseto
    (2012) eKLR

    Not enough to allege substantial loss without tangible and cogent evidence

  • Euton Njuki Makungo v Republic & 2 others
    (2014) eKLR

    Only a registry index map or cadastral map is the authentic basis to establish boundaries

Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court; review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

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, "Marina Nceece Mohamed v Michubu Karugui & another", Case Analysis (2023). Environment & Land Case 208 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15855/eng@2023-03-01

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