[2024] KEELC 7530 (KLR)

[2024] KEELC 7530 (KLR)

The court found that the applicant failed to satisfy the requirements for review under Order 45 Rule 1 of the Civil Procedure Rules. The purported new evidence, namely the DCI report, was prepared after the trial and did not exist or was not sought with due diligence at the relevant time. The applicant did not demonstrate that the evidence was unavailable or unknown at the time of the original proceedings. Furthermore, the delay of seven months in filing the review application was deemed unreasonable and unexplained, disentitling the applicant to the remedy sought. The court also noted that the DCI report did not affect the core issue of trust, which was the basis of the original...

Citation
[2024] KEELC 7530 (KLR)
Parties
Plaintiff: Esther Ngonyo Gitara; Defendant: Dominic Chege Gitari
Court
Environment and Land Court
Court Station
Environment and Land Court at Busia
Jurisdiction
Kenya
Judgment Date
12 November 2024
Case Number
Environment & Land Case E040 of 2021
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Outcome
application dismissed
Judges
BN Olao
Legal Topics
Review of Judgment, Discovery of New Evidence, Trusts in Land, Fraudulent Transfer, Delay in Application
Source Language
English
Civil Procedure Land and Property Review of Judgment Discovery of New Evidence Trusts in Land Fraudulent Transfer Delay in Application

Case Brief

Summary, issues, holding and outcome

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Parties

Esther Ngonyo Gitara

Plaintiff

Dominic Chege Gitari

Defendant

Procedural Posture

Review Application / Ruling on Application for Review of Judgment

Legal Issues

  1. 1 Whether the applicant has demonstrated discovery of new and important evidence justifying review of the judgment.
  2. 2 Whether the application for review was filed without unreasonable delay.
  3. 3 Whether the findings of the DCI report affect the original judgment on trust.

Ratio Decidendi

The court found that the applicant failed to satisfy the requirements for review under Order 45 Rule 1 of the Civil Procedure Rules. The purported new evidence, namely the DCI report, was prepared after the trial and did not exist or was not sought with due diligence at the relevant time. The applicant did not demonstrate that the evidence was unavailable or unknown at the time of the original proceedings. Furthermore, the delay of seven months in filing the review application was deemed unreasonable and unexplained, disentitling the applicant to the remedy sought. The court also noted that the DCI report did not affect the core issue of trust, which was the basis of the original...

Court Disposition

application dismissed

Orders

  • The Notice of Motion dated 4th June 2024 is dismissed.
  • Each party shall bear their own costs.