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Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (application filed on 17.7.2023 seeking review of ruling delivered 31.5.2023)· [2024] KEELC 730 (KLR)

Jeremiah M'Njogu M'Torugoji v Attorney General & 2 Others

High Court of Kenya
14 February 2024
1,474 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The High Court in Meru dismissed a bid to review a land ruling, holding that known documents are not new evidence and enforcement must be filed in the original suit.

What this practically means

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Executive summary

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The applicant, Jeremiah M'Njogu M'Torugoji, filed an application on 17.7.2023 seeking review of a ruling delivered on 31.5.2023 on the basis of new and vital information allegedly not available when the ruling was made. He sought to implement a Court of Appeal consent order concerning land, including reinstatement of L.R No. Ntima/Ntakira/685, cancellation of wrong subdivisions and transactions, and directions to the Meru Central Land Registrar and Land Surveyor. He relied on letters from the 1st respondent, Court of Appeal letters and various orders and rulings, arguing the respondents were not opposed to the proceedings and that the court should not defer implementation of the consent order. The court considered the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, and applied the test that a party seeking review on fresh evidence must show due diligence and lack of remissness. The court found that the annexed documents were correspondence and orders involving the applicant himself, arising between 2013 and the May 2023 ruling, so he was privy to them and chose not to attach them earlier. The court reaffirmed its prior findings that there was no substantive suit properly instituted other than the application dated 28.10.2013, and that execution of the Court of Appeal orders must be pursued in Meru H.C Civil Appeal No. 21 of 1990, the primary suit from which the appeal arose. The application was found incompetent and lacking merit and dismissed with costs; the subsequent applications dated 18th and 21st December 2023 were dismissed as an abuse of court process, the court lacking supervisory jurisdiction over sister courts of concurrent jurisdiction.

Key legal issues

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01

Whether the documents annexed by the applicant constitute new and vital evidence for review

Holding

The documents were correspondence and court orders unrelated to the 2013 application, all of which involved the applicant and were known to him; they do not qualify as new evidence

Reasoning

The court noted that the attached materials arose between 2013 and the May 2023 ruling and involved the applicant personally, so he was privy to them but chose not to attach them to his earlier application. The relevance and competence of the proceedings had already formed the basis of the court's prior ruling. Hence the diligence requirement in review applications was not met.

p. 3
02

Where enforcement of a Court of Appeal decree must be pursued

Holding

Execution must be made in the primary suit from which the appeal arose, namely Meru H.C Civil Appeal No. 21 of 1990

Reasoning

The court had found no substantive suit properly instituted by the applicant other than the application dated 28.10.2013. Any execution of the Court of Appeal orders must be made in the primary suit from which the appeal arose, and the applicant cannot reopen a new file to demand execution of decrees from distinct courts and different files.

p. 3

Legal principles established

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  • Review based on discovery of fresh evidence requires proof that the applicant exercised due diligence and that the evidence was not within his knowledge
  • Execution of a court's decree must be initiated in the particular file from which that decree emanated; a party cannot open a new file to enforce decrees from distinct courts
  • A court of concurrent jurisdiction lacks supervisory jurisdiction over orders or decrees issued by sister courts

Court orders

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  1. 1.The application filed on 17.7.2023 seeking review of the ruling of 31.5.2023 is dismissed with costs
  2. 2.The subsequent applications dated 18th and 21st December 2023 are dismissed for being an abuse of the court process

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45

Cases cited (3)

  • D.J Lowe & Co. Ltd vs. Banque Indosuez
    (2018) eKLR
  • National Bank of Kenya vs Ndugu Njau
    1997 eKLR
  • Republic vs Advocates Disciplinary Tribunal exparte Apollo Mboya
    (2019) eKLR
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, "Jeremiah M'Njogu M'Torugoji v Attorney General & 2 Others", Case Analysis (2024). Not stated in the judgment (application filed on 17.7.2023 seeking review of ruling delivered 31.5.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/730/eng@2024-02-14

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