[2002] KEHC 652 (KLR)
The court found that the sale agreement dated 11th July 1991 was neither new nor relevant to the present dispute. The agreement pertained to a different property and transaction, and there was no evidence that it was not available to the applicants at the time of the original hearing. The court held that the...
Source-derived case information.
- Citation
- [2002] KEHC 652 (KLR)
- Parties
- Plaintiff: Kalyan Keshra Patel; Defendant: Mary W.J. Kighala Mwaigamba; Defendant: Patrick Kighala Mwaigamba; Defendant: Osman Suleiman; Defendant: Nina Mario
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 531 of 2000
- Procedural Posture
- Civil Case / Ruling on Application for Review of Previous Ruling
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Judgment, New Evidence, Vacant Possession, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kalyan Keshra Patel
Plaintiff
Mary W.J. Kighala Mwaigamba
Defendant
Patrick Kighala Mwaigamba
Defendant
Osman Suleiman
Defendant
Nina Mario
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Previous Ruling
Legal Issues
- 1 Whether the applicants have presented new and relevant evidence to warrant review and setting aside of the court's previous ruling.
- 2 Whether the sale agreement dated 11th July 1991 is material to the current dispute over the property in question.
- 3 Whether the applicant's attempt to introduce the new evidence meets the requirements under Order 44 of the Civil Procedure Code.
Ratio Decidendi
The court found that the sale agreement dated 11th July 1991 was neither new nor relevant to the present dispute. The agreement pertained to a different property and transaction, and there was no evidence that it was not available to the applicants at the time of the original hearing. The court held that the requirements for review under Order 44 of the Civil Procedure Code were not met, as no new material evidence was exhibited. The attempt to introduce the agreement was deemed vexatious and aimed at misleading the court. Consequently, the application for review and setting aside of the previous ruling was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondent.
- The full suit shall be heard as a matter of urgency on 20th June 2002 by consent.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MOMBASA
CIVIL CASE NO. 531 OF 2000
KALYAN KESHRA PATEL ………………….....………………………. PLAINTIFF
V E R S U S
MARY W.J. KIGHALA MWAIGAMBA ……….......……………… 1ST DEFENDANT
PATRICK KIGHALA MWAIGAMBA ………….............………… … 2ND DEFENDANT
OSMAN SULEIMAN …………......………………………………… 3RD DEFENDANT
NINA MARIO …………………………........………………………… 4TH DEFENDANT
R U L I N G
The Application before the court is by way of Notice of Motion brought under Order 44 rules 1 and 3 Section 3A and 80 of Civil Procedure Act and Order 50 C.PC.
The prayers sought are the review with a view to setting aside ruling delivered by this court on 6. 2.2002. The application is supported by affidavit of Osman Suleiman and on grounds that there has now emerged new and relevant evidence not in possession of defendant previously. And is evidence which if fully considered will cause the honourable court to fundamentally alter its said ruling.
The new evidence pleaded is that by a sale agreement dated the 11th day of July 1991 shows:-
a) that 2 purch asers were involved but only one has filed the suit.
b) that the purchase price was deposited with a third party and there is no evidence that the vendor received the price.
c) that the cheques in payment was drawn by Naseeb Construction Company Ltd. Which was not a party to the transaction neither is it a party to this suit.
My observations, first, this agreement was made in 1991 and no dispute on it has arisen until now. Secondly it is not shown that this is evidence which is new and not available or in possession of applicants prior to the hearing of the application for injunction. Mary Walegwa Kighala was a signatory as vendor and should have known of it (the agreement) and had a copy since its execution. Against this case is not on agreement of sale. It is by the plaintiff (respondent here) for vacant possession and damages on the footing that the respondent is the registered owner of the property. Also the first agreement related to plot nos. 618/2/A (original 618/1/MN). The plot transferred in 1995 October 31st relates to subdivision No. 8425 (original 618/3 Section one Mainland North and being comprised in Certificate of Title R. 25653.
I find that the sale agreement dated 11. 7.1991 has nothing to do with the present land on dispute. The consideration differs because there is different in time and subject matter. Two different advocates are involved namely Mr. Parkar in the first transaction and Mr. Khatib in second transaction . The issue raised that only one registered owner has sued is not material. The proprietors own undivided shares on the land and anyone of them may take action for all the property. I conclude therefore that no new material as required under Order 44 CPC has been exhibited to warrant the court to apply the provisions of the said order. Instead l find the attempt by the applicants to introduce unrelated evidence vexatious aimed to mislead the court.
The application is hereby dismissed with costs.
Dated this 3rd day of June, 2002.
J. KHAMINWA
COMMMISSIONER OF ASSIZE
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MOMBASA
CIVIL SUIT NO. 531 OF 2000
KALYAN KESHRA PATEL ………………………………………… PLAINTIFF
V E R S U S
MARY W.J. KIGHALA MWAIGAMBA ………………………. 1ST DEFENDANT
PATRICK KIGHALA MWAIGAMBA ………………………… 2nd DEFENDANT
OSMAN SULEIMAN …………………………………………….. 3RD DEFENDANT
NINA MARIO ……………………………………………………. 4TH DEFENDANT
P R O C E E D I N G S
3. 6.2002
Khaminwa – Commissioner of Assize Esther – Clerk Mr. Kiume Mr. Kiarago
The ruling read means that the defendants may be removed from the plot. They wish to be heard and they have a right to be heard. To avoid much anxiety on all sides l order that this suit be heard as a matter of urgency.
By consent the full suit shall be heard on 20. 6.2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Status quo be maintained.
J. KHAMINWA
COMMISSIONER OF ASSIZE