Noor v Ngusare & another (Environment & Land Case E240 of 2021) [2025] KEELC 406 (KLR)
The bottom line
#A Nairobi court reopened a dismissed property payment dispute after the buyer produced bank statements proving she had paid, teaching parties to preserve payment records.
What this practically means
#Executive summary
#Key legal issues
#Whether the new documentary evidence (an executed sale agreement and KCB bank statements) satisfied the grounds for review under Order 45
Yes; the court found the Applicant had provided new evidence falling within Order 45 Rule 1 that was not within her reach at the time of the decree
The court considered an RTGS from KCB dated 7th June 2016 transferring USD 14,700 to the 1st Defendant, an email from the 1st Defendant requesting payment, and an invoice for Kshs 1,500,000 dated 1st June 2016, finding these demonstrated communications between the parties regarding the sale. The 1st Defendant was duly served via WhatsApp. The court concluded the evidence met Order 45 Rule 1 and granted the motion as prayed.
Whether the delay in bringing the review application was explained
Yes; the Applicant explained the delay by her frequent travel out of the country for business and by having closed the bank accounts through which payments were made, making the records difficult to trace
The Applicant stated she travels out of the country for lengthy periods due to her business activities and had closed the accounts used to pay the purchase price in instalments, so it took time to trace the payment records. The court accepted this explanation implicitly by granting the application, and noted the application was in any event brought without unreasonable delay as required by Order 45.
Legal principles established
#- A court may review its decree on discovery of new and important matter or evidence not within the applicant's knowledge or which could not be produced at the time despite due diligence, or for mistake or error apparent on the face of the record, or for other sufficient reason, provided the application is made without unreasonable delay
- Review on the ground of discovery of new evidence requires proof of due diligence and that the existence of the evidence was not within the applicant's knowledge; it is the discovery of new and important matter, not merely new evidence, that entitles a party to apply
Court orders
#- 1.The judgment delivered on 28th September 2023 is to be reviewed on account of new evidence previously not in the Plaintiff's records
- 2.The orders sought in the motion dated 29th July 2024 granted as prayed (including liberty to grant the prayers in the Plaint dated 5th July 2021 and amendment of the Plaintiff's name from Abdi Sheikh Noor to Amin Sheikh Noor)
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules (review of judgment by the court which passed the decree)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Noor v Ngusare & another (Environment & Land Case E240 of 2021) [2025] KEELC 406 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/406/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.