Okwach (-Suing as the Administrator of the Estate of George Okwach Aboge - Deceased) v Othiwo & another (Environment and Land Case Civil Suit 522 of 2015) [2024] KEELC 5076 (KLR)
The bottom line
#A Kisumu court refused to reopen a concluded land dispute, ruling that evidence a party could have used at trial does not count as new grounds for review.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants discovered new and important matter or evidence not available at trial
No. The Green Card and the Land Registrar's report did not reveal anything new; the unsigned transfer entry and the register entries were before the court at trial, and the Defendants failed to call the Land Registrar when he was listed as their witness.
The court compared the new Green Card obtained on 2nd August 2023 with the Plaintiff's exhibit 7 and found the entries identical up to May 1997, with the only new entry being the 2015 registration of the Plaintiff, which was immaterial since she sued as administratrix. The unsigned entry of 3rd March 1994 noted in the Land Registrar's letter was already evident on the exhibit 7 Green Card and was before the court when judgment was delivered.
Whether the judgment of Ombwayo J. should be reviewed and/or varied
The review application failed because the Defendants did not establish any ground under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
Review lies only on the enumerated grounds of new and important matter or evidence, error apparent on the face of the record, or any other sufficient reason, and an application must be made without unreasonable delay. The Defendants relied solely on discovery of new evidence, which was not proved. Their dissatisfaction with the trial court's findings was at best a ground of appeal, not of review, and the application was an attempt to re-open a concluded suit for rehearing.
Whether the Land Registrar should be directed to rectify the register reverting the suit property to the 1st Defendant
This relief was refused as the application was dismissed in its entirety.
The rectification order was premised on the success of the review application. Having failed to establish the ground for review, the Defendants could not obtain orders flowing from it. The court also found no proof that the Plaintiff's Green Card was fraudulently obtained, noting the Land Registrar did not explain the certificates of official search showing the deceased as registered proprietor on 3rd March 1994.
Legal principles established
#- A party seeking review on the ground of discovery of new and important matter or evidence must show the matter was not within its knowledge and could not, with due diligence, have been produced at the hearing; evidence available but not adduced at trial is not new evidence justifying review
- An application that merely seeks to call additional evidence in support of a party's case after judgment is not a proper ground for review
Court orders
#- 1.The Defendants' Notice of Motion dated 27th November 2023 is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Sections 80, 63(e) and 3A of the Civil Procedure Act and Order 40 Rules 1, 2, 3 and 4, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okwach (-Suing as the Administrator of the Estate of George Okwach Aboge - Deceased) v Othiwo & another (Environment and Land Case Civil Suit 522 of 2015) [2024] KEELC 5076 (KLR)", Case Analysis (2024). Notice of Motion dated 27th November 2023 (Kisumu Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5076/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.