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ELCDismissedCivil Suit No 95 of 2007· [2024] KEELC 1021 (KLR)

Onchomba v Kenyanya & 2 others (Civil Suit 95 of 2007) [2024] KEELC 1021 (KLR)

Environment and Land Court
29 February 2024
MSMunyao Sila
2,618 words in judgment
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The bottom line

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The court refused to reopen a 2014 land judgment, confirming that losing parties must appeal, not file review, and eviction can now proceed.

What this practically means

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Executive summary

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This was a ruling by Munyao Sila J of the Environment and Land Court at Kisii on an application dated 19 June 2023 by the defendants/judgment creditors seeking to set aside, review and vacate the judgment of Okong'o J delivered on 7 February 2014, which had upheld the plaintiff's title to South Mugirango/Bosinange/2855 and ordered eviction. The applicants, claiming to be heirs of Nyambeki Makori through woman-to-woman marriages under Gusii customary law, alleged discovery that no succession proceedings existed for the parcels and that the plaintiff's title stemmed from fraud by Mary Bitengo. The court traced the chain of title from the original parcel 439 through parcel 2809 to the subdivided parcels 2855 and 2856, and noted that the identical succession/fraud issues had been litigated and dismissed by Musinga J in Kisii HCCC No. 114 of 2002, where the succession file (Cause No. 30 of 1998) was produced. The applicants had mistakenly annexed records of Cause No. 30 of 1997, an unrelated estate. The court found no new evidence, no error apparent on the face of the record, and inordinate delay of nine years. It held that disagreement with a judgment is a ground of appeal, not review, and that the successful plaintiff deserved the fruits of her judgment. The application was dismissed with costs, with liberty to execute eviction orders forthwith if vacant possession was not given.

Key legal issues

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01

Discovery of new and important matter or evidence

Holding

There was no discovery of new evidence: the succession cause in respect of Nyambeki Makori (Kisii High Court Succession Cause No. 30 of 1998) exists, was produced in Kisii HCCC No. 114 of 2002, and the applicants annexed an irrelevant cause (No. 30 of 1997).

Reasoning

The alleged new evidence – that no succession proceedings existed – was already pleaded in the defence and could have been raised at the hearing. The applicants waited nine years after judgment. The file of the estate of Nyambeki Makori was produced in Kisii HCCC No. 114 of 2002, which Musinga J dismissed on 23 July 2010, confirming the succession cause number. The plaintiff, as purchaser from Mary Bitengo, was not the grant holder and cannot answer for the grant.

p. 4
02

Error apparent on the face of the record

Holding

No error apparent exists; the judge evaluated the pleadings and evidence and concluded the applicants had no rights over the suit land, which is not an error on the face of the record.

Reasoning

Disagreement with a judgment's evaluation of evidence is a ground of appeal, not review. The court found that the applicants, having lost two successive suits, could not use review to re-litigate issues already canvassed, and the plaintiff deserved the fruits of her judgment.

p. 5

Legal principles established

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  • A party who alleges error in a judgment must appeal rather than seek review
  • Review on discovery of new evidence requires matter that could not with due diligence have been produced at the hearing
  • A successful litigant is entitled to the fruits of the judgment

Court orders

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  1. 1.The application dated 19 June 2023 seeking review of the judgment of 7 February 2014 is dismissed with costs
  2. 2.The orders of eviction may be executed forthwith if the applicants do not give vacant possession

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1
Jurisdiction invoked
Order 45 of the Civil Procedure Rules (review jurisdiction of the court which passed the decree)

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, "Onchomba v Kenyanya & 2 others (Civil Suit 95 of 2007) [2024] KEELC 1021 (KLR)", Case Analysis (2024). Civil Suit No 95 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1021/eng@2024-02-29

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