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ELCDismissedEnvironment & Land Case 1202 of 2007· [2023] KEELC 18083 (KLR)

Malombe v Munyalo

Environment and Land Court
12 June 2023
4,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by S. O. Okong'o, J of the Environment and Land Court at Nairobi determines a Notice of Motion dated February 19, 2020 by the defendant, Wango Munyalo, seeking review and setting aside of the judgment of January 31, 2019, in which the court had declared that the deceased's title to the suit property (Matinyani/Kasaini/1305, formerly part of Plot No 533) was extinguished by the plaintiff's adverse possession and ordered the plaintiff's registration as proprietor. The defendant argued the suit was res judicata because Machakos High Court Civil Appeal No 23 of 1998, decided in the deceased's favour in June 2003, had determined the dispute. The plaintiff opposed, contending the appeal judgment was not new evidence, was decided purely on jurisdiction, and that the application was brought after inordinate unexplained delay. The court identified a single issue: whether sufficient basis existed for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. It held the Appeal Case judgment was within the defendant's knowledge all along and thus not new matter; that the appeal succeeded only on the Kitui magistrate's court's lack of jurisdiction over adverse possession, so the issue was never determined on merit and the suit was not res judicata; and that the application, filed over a year after judgment with an unexplained four-month delay even on the defendant's own account, was time-barred in equity. The application was dismissed with each party bearing its own costs, the plaintiff being denied costs for concealing the existence of the Appeal Case judgment.

Key legal issues

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01

Whether the judgment in Machakos High Court Civil Appeal No 23 of 1998 constituted new and important matter or evidence justifying review

Holding

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.

Reasoning

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.

p. 6
02

Whether the Appeal Case judgment rendered this suit res judicata

Holding

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.

Reasoning

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.

03

Whether the application was brought without unreasonable delay

Holding

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.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated February 19, 2020 is dismissed
  2. 2.Each party shall bear its own costs of the application

Authorities

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Legislation

  • Limitation of Actions ActSection 7; Section 38(1); Section 38
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45; Order XXXVI rule 3D (old rules)

Cases cited (7)

  • Ann Iumbi Kiseli v James Muriuki Muriithi
    (2013) eKLR

    Ingredients of adverse possession

  • Wambugu v Njuguna
    (1983) KLR 173

    Ingredients of adverse possession

  • Mtana Lewa v Kahindi Ngala Mwagandi
    [2015] eKLR

    Ingredients of adverse possession

  • Republic v Public Procurement Administrative Board & 2 others
    [2018] eKLR

    Grounds for exercise of review jurisdiction

  • Francis Origo & another v Jacob Kumali Mungala
    Eldoret CA No 149 of 2001 [2005] eKLR

    Requirements an applicant for review must satisfy

  • Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints
    Nairobi C.A 132 of 2014 [2016] eKLR

    Stringent requirements for review including absence of unreasonable delay

  • John Kamau Ruhangi v Kenya Reinsurance Corporation
    Civil Appeal No 208 of 2006 [2012] eKLR

    Scope of review jurisdiction; grounds of appeal are not grounds of review

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)

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, "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.