Kamau & another v Karuga & another (Environment & Land Case 267 of 2018) [2024] KEELC 1135 (KLR)
The bottom line
#A landowner who lost an adverse possession case in Thika failed to get the judgment reviewed because he didn't prove new evidence or a clear court error.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated discovery of new and important matter or evidence which could not, with due diligence, have been produced at trial
No. The Limuru suit was not new matter: the Court's judgment expressly considered it, the Applicant listed James Ngugi Mungai as his witness, and the claim that Mungai could not be traced was uncontroverted and untrue.
The Applicant listed Mungai as a witness in his List of Witnesses dated 19/2/2019 and testified he bought the land from him in October 2018, making it implausible he was unaware of Mungai's 2016 suit. The assertion that Mungai could not be traced for five years was not controverted, the parties living in the same village. The judgment itself referred to the Limuru suit when holding that Mungai's title had been extinguished, so the matter was not new.
Whether there is any mistake or error apparent on the face of the record
No error apparent on the face of the record was shown.
The Applicant contended errors on the face of the record and non-compliance with Order 37(2) and reliance on Section 17 of the Land Acquisition Act, but adduced no evidence of any apparent error. A complaint that the court reached the wrong conclusion on a matter it considered is not an error apparent on the face of the record but a ground of appeal.
Legal principles established
#- A party seeking review must prove the grounds in Order 45 - discovery of new and important matter after due diligence, error apparent on the face of the record, or sufficient reason - and a complaint that the court failed to consider a matter is a ground for appeal, not review.
- Averments in a replying affidavit that are not controverted are taken by the court as the correct position.
Court orders
#- 1.The Applicant's Application dated 3/4/2023 seeking review is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Order 45 rules 1, 2 & 3 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamau & another v Karuga & another (Environment & Land Case 267 of 2018) [2024] KEELC 1135 (KLR)", Case Analysis (2024). Not indicated in the judgment (adverse possession suit; review application dated 3/4/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1135/eng@2024-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.