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ELCDismissedEnvironment & Land Case 397 of 2011· [2023] KEELC 18331 (KLR)

Ngiria v Ouko & 2 others

Environment and Land Court
22 June 2023
LMLucy N. Mbugua
1,295 words in judgment
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The bottom line

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A Kenyan landowner lost his bid to reopen a 2019 judgment because the 'new' evidence was available to him all along.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (LN Mbugua, J) determines a Notice of Motion dated February 5, 2020 by which the Plaintiff, Joseph Kamau Ngiria, sought review and/or setting aside of a judgment delivered on February 21, 2019 in his adverse possession claim over LR No 3589/52 and 3589/53, subdivisions of LR No 3589/6 (IR No 23229/1). The Plaintiff relied on two deed plans (KN1 and KN2) as newly discovered evidence, explaining that the deed plan for LR 3589/53 had only been produced in Criminal Case No 4600 of 2016 (in which his sons were convicted in 2018) and in ELC Case No 1028 of 2016 (Marcella Omwenga v Joseph Kamau Ngiria), which abated. The Defendants, through the 2nd Defendant's replying affidavit, opposed, arguing the threshold for review was not met, the application was an afterthought filed a year after judgment, and complaints about non-consideration of evidence are grounds of appeal, not review. The court framed one issue: whether the Plaintiff met the criteria for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Applying Court of Appeal authority, it held that strict proof of discovery of new evidence is required and that review cannot cure lack of diligence. Since both deed plans were known to the applicant before judgment, no sufficient grounds existed. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the plaintiff met the criteria for review of judgment under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

Holding

The application failed; the deed plans were known to the applicant before judgment, so there was no discovery of new evidence after due diligence

Reasoning

The court applied Order 45 rule 1 as explained by the Court of Appeal: review requires new and important matter not within the applicant's knowledge despite due diligence, an error apparent on the face of the record, or other sufficient reason. The deed plans for LR 3589/52 and 3589/53 had been annexed or produced in prior 2016 proceedings (ELC Case No 1028 of 2016 and Criminal Case No 4600 of 2016), so the applicant knew of them before the February 21, 2019 judgment. Review cannot cure lack of diligence.

p. 3

Legal principles established

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  • Review jurisdiction under Order 45 rule 1 requires discovery of new and important matter or evidence which, after due diligence, was not within the applicant's knowledge or could not be produced when the decree was passed
  • An application for review based on discovery of new and important matter or evidence requires strict proof of that allegation
  • The discretion to grant review cannot be used to aid a party who has shown lack of diligence or to fill gaps in evidence

Court orders

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  1. 1.The Notice of Motion application dated February 5, 2020 is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 rule 1

Cases cited (5)

  • Christopher Musyoka Musau v N P G Warren & 8 others
    [2017] eKLR

    Review jurisdiction and its three conditions under Order 45 rule 1, distinct from appeal

  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR

    Review discretion cannot aid a party showing lack of diligence

  • Pancras T Swai v Kenya Breweries Limited
    [2014] eKLR

    Review refused where evidence/witness was all along known to the applicants

  • Francis Origo & another v Jacob Kumali Mungala
    CA Civil Appeal No 149 of 2001 (unreported)

    Discovery ground fails where intended evidence was known all along

  • Stephen Wanyoike Kinuthia (suing on behalf of John Kinuthia Marega (deceased) v Kariuki Marega & Another
    (2018) eKLR

    New-evidence review requires strict proof of the allegation

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, "Ngiria v Ouko & 2 others", Case Analysis (2023). Environment & Land Case 397 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18331/eng@2023-06-22

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