Malombe v Munyalo
The bottom line
#Kenya's Environment and Land Court dismissed a bid to overturn a land judgment, ruling that known court decisions and unexplained delay cannot justify a review.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment in Machakos High Court Civil Appeal No 23 of 1998 constituted new and important matter or evidence justifying review
It did not; the judgment was within the defendant's knowledge all along and could not qualify as a discovery of new matter after due diligence.
The Appeal Case judgment was delivered months before this suit was filed, the deceased who won the appeal defended this suit through an advocate without raising it, and the defendant as his legal representative failed to participate in the hearing despite service. A matter known to a party cannot be new matter discovered after due diligence, so it is not a ground for review.
Whether the Appeal Case judgment rendered this suit res judicata
No; the appeal succeeded only on the ground that the Kitui Magistrate's Court lacked jurisdiction over adverse possession, and neither that court nor the appeal court determined the adverse possession issue on merit.
Res judicata requires determination of the issue on merit. The Kitui court's determination was nullified on jurisdictional grounds and the appeal court made no finding on adverse possession itself. The present suit, filed to assert the adverse possession claim, therefore remained open and the res judicata argument failed as a basis for review.
Whether the application was brought without unreasonable delay
No; the application was filed over one year after the judgment, and even on the defendant's own account there was an unexplained four-month delay after learning of the judgment.
The judgment was delivered on January 31, 2019 and the application filed on February 19, 2020. The defendant claimed she learnt of the judgment in October 2019, but gave no explanation for the four months that elapsed before filing. Delay alone disentitled her to the discretionary relief of review.
Legal principles established
#- A judgment not raised before the court despite being within the applicant's knowledge is not a new and important matter or evidence for purposes of review.
- A suit is not res judicata where the prior decision did not determine the issues on merit, such as where the earlier court lacked jurisdiction.
- Inordinate unexplained delay disentitles an applicant to review.
Court orders
#- 1.The Notice of Motion application dated February 19, 2020 is dismissed
- 2.Each party shall bear its own costs of the application
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malombe v Munyalo", Case Analysis (2023). Environment & Land Case 1202 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18083/eng@2023-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.