Kiuna & another (Administrators of the Estate of Kiarie Kiuna - Deceased) v Hinga (Environment & Land Case 11 of 2017) [2024] KEELC 4619 (KLR)
The bottom line
#A Kenyan land owner who hid a court ruling that cancelled his Tribunal award lost his judgment, which was set aside for a fresh trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants discovered new and important matter or evidence which, after due diligence, was not within their knowledge when the judgment was delivered
Yes. The High Court ruling by Maraga J of 27/10/2010 annulling the Tribunal award and the Magistrate Court decree was not disclosed in the respondent's exhibits or trial bundle, the applicants' deceased father could not have known of it, and no evidence controverted their lack of knowledge.
The court examined the respondent's 2017 replying affidavit exhibits and his trial bundle and found neither contained any reference to Nairobi High Court Misc Civil Application No 153 of 2007. The suit's defence, counterclaim and oral evidence were anchored on the Tribunal award and decree which had in fact been annulled. The respondent, though a party to the judicial review proceedings that annulled them, concealed that fact, so the judgment rested on false evidence and misleading pleadings.
Whether the new evidence is directly relevant to and impacts the judgment
Yes. The entire judgment turned on the subsistence of the Tribunal award and decree; the discovery that both had been annulled goes to the root of the findings on trespass and the counterclaim.
The judgment's key findings were that the defendant was not a trespasser and that the counterclaim succeeded because the award and decree subsisted. Since those foundations were annulled by the High Court, the evidence directly impacts the judgment and justifies setting aside both the trial proceedings and the judgment.
Legal principles established
#- Review is a serious step and not a vehicle for a rehearing; it lies only where there is an error apparent on the face of the record or discovery of new and important matter not obtainable by due diligence.
- A judgment is final and review is justified only in circumstances of a substantial and compelling character.
Court orders
#- 1.The Judgment dated 20/9/2023 is hereby reviewed and wholly set aside under Order 45 rule 1 of the Civil Procedure Rules.
- 2.Fresh trial shall be conducted before a different Judge of this Court.
- 3.The defendant shall bear costs of the application dated 13/10/2023.
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiuna & another (Administrators of the Estate of Kiarie Kiuna - Deceased) v Hinga (Environment & Land Case 11 of 2017) [2024] KEELC 4619 (KLR)", Case Analysis (2024). Nairobi High Court Miscellaneous Application No 153 of 2007 referenced; instant suit: Thika ELC cause, application dated 13/10/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4619/eng@2024-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.