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ELCDismissedNot stated in the judgment· [2024] KEELC 3672 (KLR)

Githinji v Mugo & another (Environment & Land Case 634 of 2014) [2024] KEELC 3672 (KLR)

Environment and Land Court
9 May 2024
JOJ. O. OLOLA
1,300 words in judgment
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The bottom line

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The Nyeri Environment and Land Court dismissed a landowner's bid to re-open his case because the forensic report he wanted to add was already part of the evidence.

What this practically means

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Executive summary

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The Plaintiff, Mathew Kariuki Githinji, applied by notice of motion seeking review, variation and/or setting aside of the Court's judgment/orders of 8th May 2023 in a suit he filed in 2008 seeking cancellation of a title deed over parcel Othaya/Itemeini/203 issued to the late Mathew Ndiritu Rubia. He sought leave to re-open his case and produce a Forensic Document Examiner's Report allegedly indicating forged signatures on the Sale Agreement, Transfer Form and Land Control Board Form, contending his previous advocate unwittingly failed to produce it. The Defendants opposed via Grounds of Opposition, asserting the report was already produced, the trial was not terminated, and the application was an abuse of process. The Court, per J. O. Olola J, considered Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules governing review. The Court found from the record that the Forensic Document Examiner's Report dated 10th May 2012 had been filed with the Plaintiff's list of documents and was produced by consent as PExh 2 on 17th September 2013, after the Plaintiff's then advocate Mr. Mwangi indicated he had it but could not trace the CID officer. The judgment of 8th May 2023 itself recorded the Plaintiff's testimony that the transfer documents were forgeries as found by the CID. The Court therefore held the Plaintiff's position that the report was not produced or considered was not factual, applied Kenneth Nyaga Mwige v Austin Kiguta on proof of documents, and dismissed the application with costs to the Defendants.

Key legal issues

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01

Whether the Applicant satisfied the grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules

Holding

The application failed because the alleged new and important matter (the Forensic Document Examiner's Report) had already been produced and considered by the Court in its judgment

Reasoning

The record showed that the Forensic Document Examiner's Report dated 10th May 2012 was filed with the Plaintiff's list of documents, and on 17th September 2013 the Plaintiff's then Advocate indicated he had the report but had difficulty tracing the CID officer who prepared it. The document was allowed and produced by consent as PExh 2. The judgment of 8th May 2023 expressly recorded the Plaintiff's testimony that the transfer documents were forgeries as found by the CID. The claim of non-production was therefore factually wrong, and there was no new matter or evidence after due diligence to warrant review.

p. 3

Legal principles established

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  • When forming a judicial opinion on whether a document has been proved or disproved, the Court considers all facts and evidence on record, not the document alone

Court orders

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  1. 1.The Application dated 25th May 2023 is dismissed with costs to the Defendants

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Section 80
  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Civil Procedure RulesOrder 18 Rule 2(3)
  • Constitution of KenyaArticle 159(2)(b)

Cases cited (1)

  • Kenneth Nyaga Mwige v Austin Kiguta & 2 Others
    (2015) eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act, Cap. 21 and Order 45 Rule 1(1) 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, "Githinji v Mugo & another (Environment & Land Case 634 of 2014) [2024] KEELC 3672 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3672/eng@2024-05-09

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