Arthur Athanasius Moody Awori v Attorney General & 2 others
The bottom line
#The Environment and Land Court refused to reopen a 2017 land dispute because the applicant could not prove his 'new' evidence was actually discovered after the judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established discovery of new and important matter or evidence under Order 45 rule 1
No. The applicant failed to prove that exhibits JNA-1 and JNA-2 were discovered or received after the judgment; the documents bore no certification or receipt dates.
The court perused exhibits JNA-1 (a 1998 letter from the Commissioner of Lands on boarding of the government house) and JNA-2 (a board of surveyors report) and found nothing showing they were retrieved after the judgment or received by Jeremy Noel Awori on October 16, 2021. Following Rose Kaiza v Angelo Mpanju, applications for review on new evidence must be treated with caution and due diligence proved.
Whether the judgment of June 21, 2017 was per incuriam
No. The judgment considered the facts, documents, submissions and applicable law in depth.
The court adopted the definition of per incuriam from the Supreme Court decision in Senate & 2 others v Council of County Governors & 2 others, holding that a judgment is per incuriam only when rendered in ignorance of a constitutional or statutory prescription or binding precedent. On reading the 2017 judgment, the court had considered the material before it, so the per incuriam claim failed.
Whether the unsigned petition affected the 2017 judgment
No. The petition was not struck out or dismissed for want of signature; it was determined on the merits.
The court noted that although the petition was not signed, the 2017 judgment proceeded to consider the petition on its merits notwithstanding the procedural omission, concluding the petitioner had failed to prove infringement of his constitutional rights. The procedural omission therefore could not ground review.
Legal principles established
#- A party relying on discovery of new and important matter or evidence for review must prove not only the discovery but also that it occurred after the decision sought to be reviewed
- A judgment is per incuriam only when rendered in ignorance of a constitutional or statutory prescription or of a binding precedent
Court orders
#- 1.The notice of motion dated December 10, 2021 seeking review of the judgment of June 21, 2017 is dismissed
- 2.Each party to bear own costs
- Jurisdiction invoked
- Articles 22, 23, 27, 40, 48 and 50 of the Constitution of Kenya; Order 45 rule 1 of the Civil Procedure Rules 2010 and sections 1A and 3A of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arthur Athanasius Moody Awori v Attorney General & 2 others", Case Analysis (2023). Constitutional Petition 6 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16975/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.