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ELCDismissedNot stated in judgment· [2024] KEELC 7010 (KLR)

Kagwanja v Town Council of Molo & another (Environment & Land Case 85 of 2013) [2024] KEELC 7010 (KLR)

Environment and Land Court
17 October 2024
797 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reopen a land judgment because the applicant couldn't prove he tried hard enough to get key documents before the case was decided.

What this practically means

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Executive summary

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This is a ruling on an application for review of a judgment delivered on 15th February 2024, in which the Environment and Land Court at Nakuru ordered the eviction and demolition of the plaintiff's structures on the suit land, gave him 90 days to vacate, and issued a permanent injunction restraining him from entering, remaining on, trespassing on, developing or cultivating the suit property. The plaintiff sought review on the ground of discovery of new and important matter, namely survey maps and related documentation which he said he could not access before judgment due to a digitization exercise and the loss of the court file. The 5th defendant, through the administratrix Jacinta Wairimu Kimani, opposed the application as baseless, frivolous and an abuse of court process, contending there was no evidence of any search or survey and no survey plan at all. The court, Ombwayo J, set out the jurisdiction for review under section 80 of the Civil Procedure Act and Order 45 rule 1(b) of the Civil Procedure Rules, limiting review to discovery of new and important matter after due diligence, error apparent on the face of the record, or other sufficient reason, made without unreasonable delay. The court found no new and important evidence: the document was not a certified survey map and would not materially shift the plaintiff's case. The plaintiff had not shown serious efforts, such as a letter, to obtain the documents from the lands office before judgment. The application was dismissed with costs.

Key legal issues

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01

Whether uncertified survey maps obtained after judgment constitute new and important evidence for review

Holding

No; the documents are not certified survey maps and would not make any important shift in the plaintiff's case

Reasoning

The court examined the alleged new evidence and found the document relied upon was not a certified survey map. Even if it were proper, it would not materially alter the case. The plaintiff also failed to show he made serious efforts to obtain the documents from the lands office before judgment, so the due diligence requirement under Order 45 rule 1(b) was not satisfied.

p. 2
02

Whether loss of the file and digitization excuses failure to produce the documents at trial

Holding

No; there is no evidence of due diligence such as a letter calling for the documents before judgment

Reasoning

The plaintiff attributed his inability to access survey maps and documentation to a digitization exercise and loss of the file. The court held that the plaintiff could have obtained the documents before judgment had he made serious efforts, and that no correspondence requesting the documents was availed, so no due diligence was demonstrated.

p. 2

Legal principles established

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  • Review is limited to discovery of new and important matter/evidence after due diligence, mistake or error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay.
  • An applicant for review must demonstrate due diligence in seeking to obtain the alleged new evidence before judgment; mere inability attributed to a digitization exercise without evidence of effort is insufficient.

Court orders

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  1. 1.The application for review is dismissed
  2. 2.Costs awarded to the respondent/defendants
Jurisdiction invoked
Order 45 rule 1(b) of the Civil Procedure Rules and section 80 of the Civil Procedure Act (Cap 21)

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, "Kagwanja v Town Council of Molo & another (Environment & Land Case 85 of 2013) [2024] KEELC 7010 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7010/eng@2024-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.