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ELCAllowedNairobi High Court Miscellaneous Application No 153 of 2007 referenced; instant suit: Thika ELC cause, application dated 13/10/2023· [2024] KEELC 4619 (KLR)

Kiuna & another (Administrators of the Estate of Kiarie Kiuna - Deceased) v Hinga (Environment & Land Case 11 of 2017) [2024] KEELC 4619 (KLR)

Environment and Land Court
5 June 2024
3,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This ruling by Eboso J of the Environment and Land Court at Thika determines a notice of motion dated 13/10/2023 in which the plaintiffs, administrators of the estate of the late Kiarie Kiuna, sought review of the court's judgment of 20/9/2023 under Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. The original judgment had found the defendant was not a trespasser on a one-acre portion of Ndeiya/Ndeiya/1419 and allowed his counterclaim, on the basis that a Land Disputes Tribunal award and a Magistrate Court decree in his favour subsisted. The plaintiffs discovered, after judgment, a ruling by Maraga J of 27/10/2010 in Nairobi High Court Misc Civil Application No 153 of 2007 annulling both the award and the decree. The respondent opposed, arguing he had exhibited the Tribunal proceedings and decree in his replying affidavit and trial bundle, so the material was not new. The court scrutinised those exhibits and the trial bundle and found no reference to the High Court judicial review proceedings. Kiarie Kiuna died in 2008 before the 2010 ruling was rendered, and no evidence controverted the applicants' lack of knowledge. The respondent, though a party to the annulment proceedings, concealed that fact and prosecuted his defence and counterclaim on false premises. Holding the applicants to have met the review threshold, the court reviewed and wholly set aside the judgment of 20/9/2023 together with the trial proceedings, ordered a fresh trial before a different judge, and awarded the applicants costs of the application against the defendant.

Key legal issues

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01

Whether the applicants discovered new and important matter or evidence which, after due diligence, was not within their knowledge when the judgment was delivered

Holding

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.

Reasoning

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.

p. 4
02

Whether the new evidence is directly relevant to and impacts the judgment

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Fresh trial shall be conducted before a different Judge of this Court.
  3. 3.The defendant shall bear costs of the application dated 13/10/2023.

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 rule 1

Cases cited (5)

  • Mohamed Fugicha v Methodist Church in Kenya (Through its Registered Trustees) & 3 others
    (2020) eKLR, Civil Application No 4 of 2019
  • Fredrick Otieno Outa v Jared Odoyo Okello & 3 others
    (2017) eKLR
  • Sow Chandra Kanta & another v Sheik Habib
    1975 AIR 1500, 1975 SCC (4) 457
  • Northern India Caterers (India) v Governor of Delhi
    1980 AIR 674
  • Daniel Macharia Karagacha v Monica Watithi Mwangi
    Civil Appeal No 159 of 2000
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 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, "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.