Rotich (Suing as the Administratrix of the Estate of the Late David Kiplangat Rotich - Deceased) v Kipkorir & 5 others (Environment and Land Appeal E004 of 2022) [2024] KEELC 3836 (KLR)
The bottom line
#Kenya's Environment and Land Court in Kericho restored an eviction judgment after ruling that the losing parties failed to prove the 'new evidence' needed for a review.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondents lacked locus standi to file the review application
The ground fails; the Appellant cannot challenge the Respondents' capacity to defend a suit she herself instituted, since the question goes to the foundation of her own suit
The suit was instituted by the Appellant against the Respondents, who filed the review application as Defendants in that very suit. If the Defendants lacked capacity, the Appellant's own suit would be a nullity. The court held she cannot 'have his cake and eat it' and rejected the locus standi ground as lacking merit.
Whether the trial magistrate erred in setting aside the judgment on the ground of discovery of new material evidence
The finding was erroneous; the alleged 'new evidence' was not new, and the Respondents did not meet the review threshold
The alleged new evidence - that Kericho/Kapkures/206 and 207 were subdivisions of Kericho/Kapkures/97 and that there was no distinct boundary - was a gap in evidence already raised, addressed and determined in the original judgment. The Respondents also failed to demonstrate due diligence: the lack of boundary would have been discoverable before judgment. The review threshold under Section 80 CPA and Order 45 was not met.
Costs of the appeal
Costs follow the event; the successful Appellant is awarded costs
Relying on Section 27 of the Civil Procedure Act, the court applied the settled principle that a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. The appeal succeeded, so the Appellant was awarded costs.
Legal principles established
#- An applicant for review on the ground of discovery of new and important evidence must demonstrate that the discovery was made after the order sought to be reviewed was passed and could not have been obtained with due diligence
- A court may only review its judgment on the grounds set out in Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Court orders
#- 1.The appeal succeeds
- 2.The ruling and order in Sotik PMCC ELC No. E002 of 2021 delivered on 21st June, 2022 is hereby set aside
- 3.The Appellant shall have costs of the Appeal
- On appeal from
- Principal Magistrate's Court, Sotik
- Sotik PMCC ELC No. E002 of 2021
- Jurisdiction invoked
- First appeal from the Principal Magistrate's Court in an environment and land matter under the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich (Suing as the Administratrix of the Estate of the Late David Kiplangat Rotich - Deceased) v Kipkorir & 5 others (Environment and Land Appeal E004 of 2022) [2024] KEELC 3836 (KLR)", Case Analysis (2024). Sotik ELC Appeal (Memorandum of Appeal dated 24th June, 2022) arising from Sotik PMCC ELC No. E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3836/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.