Thuo & another v Gikera & another (Environment & Land Case 72 of 2017) [2024] KEELC 5851 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a review attempt, ruling that forgotten documents are negligence, not new evidence, and dismissed suits cannot be reopened.
What this practically means
#Executive summary
#Key legal issues
#Whether the application met the criteria for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1
It did not. The letter of consent, mutation form and title deeds were all in existence and in the Applicants' possession when the earlier application was filed; their omission was negligence, not discovery of new matter, and the application was an attempt to re-argue a dismissed application.
Review requires discovery of new and important matter which, after due diligence, could not have been produced earlier. The consent, mutation form and title deeds existed and were in the Applicants' possession since 2014 and 2016. Their late production is negligence, not discovery. Following Evan Bwire v Andrew Aginda, allowing review on such grounds would re-open the case afresh, contrary to the finality of litigation.
Whether the court could entertain further proceedings in a suit dismissed as res judicata
It could not. The suit was dismissed on 28th November 2018 as res judicata, no counterclaim was filed and no positive orders were made in the Defendants' favour; the court is functus officio and any further proceedings are a nullity.
The dismissal for res judicata was not appealed or set aside, so the suit stands dismissed as a closed matter. The functus officio doctrine gives expression to finality: a decision-maker may exercise adjudicative powers only once. Any claim to eviction over Loc 2/Kinyona/4192 is a new cause of action that must be pursued in a fresh suit, not in a dismissed matter.
Whether failure to annex a formal extracted order rendered the application fatally defective
No. Although the Applicants annexed the ruling rather than an extract of the order, the court applied Article 159(2)(d) of the Constitution and Order 51 Rule 10 and treated the defect as a technicality that could not defeat the application.
Following Suleiman Murunga v Nilestar Holdings Limited, an applicant for review ought to annex a formal extracted decree or order. However, the court invoked the overriding objective and Article 159(2)(d) to hold that the application would not be defeated on account of that omission; the dismissal rested on substantive grounds.
Legal principles established
#- Review lies only on the grounds in Order 45 Rule 1 - discovery of new and important matter not producible with due diligence, error apparent on the face of the record, or any other sufficient reason - and mere negligence to avail available documents is not a ground for review
- Once a suit is dismissed, the court is functus officio and no further proceedings may be entertained in it apart from execution proceedings; filing further proceedings in a dismissed suit is a nullity
- Failure to annex a formal extracted decree or order in a review application is a technicality that will not defeat an application under Article 159(2)(d) and Order 51 Rule 10
Court orders
#- 1.The Notice of Motion dated 12th October 2023 seeking review of the ruling of 28th September 2023 is dismissed entirely
- 2.Costs of the Application awarded to the Plaintiffs/Respondents
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review); Article 159(2)(d) of the Constitution and Order 51 Rule 10 cited on technicalities
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thuo & another v Gikera & another (Environment & Land Case 72 of 2017) [2024] KEELC 5851 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5851/eng@2024-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.