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ELCDismissedNot stated in the judgment· [2024] KEELC 1491 (KLR)

Karinge & 2 others v Muchai (Environment & Land Case 592 of 2016) [2024] KEELC 1491 (KLR)

Environment and Land Court
15 March 2024
AOA.O. Ombwayo
3,085 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reopen a land judgment because the applicants could have found their documents before trial — preparation is not an afterthought.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (A.O. Ombwayo, J) determines a Notice of Motion dated 7th December 2023 in which the Applicants sought a stay of execution and the review and/or setting aside of a judgment delivered on 15th June 2023, pursuant to Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The Applicants argued that the parcel file for the suit land had disappeared from the registry, depriving them of the transfer forms at trial; they had since obtained copies from their agent which they said would alter the judgment. They also relied on the court's alleged finding that the Defendant lacked locus standi, contending this was an error apparent on the face of the record. The Respondent opposed, contending the transfer document was a defective, unregistered, unattested and undated instrument, that the Applicants were merely attempting an appeal disguised as review, and that they had acquiesced. The court framed one issue: whether the judgment should be reviewed or set aside. It held the applicants had adequate opportunity to produce the transfer copies, that preparation for trial cannot be an afterthought, and that the documents - unregistered, unattested and unsigned by the Land Registrar - did not meet the threshold of new and important evidence. The application was dismissed with no order as to costs, delivered virtually at Nakuru on 15th March 2024.

Key legal issues

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01

Whether the purported transfer documents constitute new and important matter or evidence warranting review under Order 45 Rule 1

Holding

The court was not convinced; the documents were not new evidence discovered after due diligence, and the applicants had adequate opportunity to produce them at trial

Reasoning

The applicants claimed the parcel file had disappeared from the registry so they could not produce the transfer forms at the hearing. The court held both parties had sufficient time to prepare for trial, and the explanation that they 'came across' copies from their agent was unpersuasive. The documents were also facially defective: not presented for registration, not attested, not signed by the Land Registrar, undated and lacking photographs. Preparation for trial cannot be an afterthought.

p. 6
02

The preconditions for review under Order 45 Rule 1 and Section 80 of the Civil Procedure Act

Holding

Review requires discovery of new and important matter or evidence, a mistake or error apparent on the face of the record, or any other sufficient reason; none was established

Reasoning

The court set out the statutory framework: Section 80 confers the power of review and Order 45 restricts its grounds. The preconditions are discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason. The applicants' claim of newly found transfer copies and alleged error on locus standi did not satisfy these thresholds, and the Respondent argued the grievances belonged on appeal.

p. 5

Legal principles established

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  • Section 80 of the Civil Procedure Act gives the power of review while Order 45 lays down the rules which restrict the grounds and scope of review
  • A party must exercise due diligence in preparing for trial; failure to produce documents available through reasonable diligence does not constitute new and important matter for review

Court orders

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  1. 1.The application dated 7th December, 2023 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010

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, "Karinge & 2 others v Muchai (Environment & Land Case 592 of 2016) [2024] KEELC 1491 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1491/eng@2024-03-15

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