[2024] KEELC 6160 (KLR)
The court found that the applicants failed to meet any of the three limbs required for review under Order 45(1) of the Civil Procedure Rules. The alleged new evidence regarding the respondent's paternity was not new, as it was addressed in the original judgment and could have been raised by the applicants during the...
Source-derived case information.
- Citation
- [2024] KEELC 6160 (KLR)
- Parties
- Applicant: Sunte Nenkalash Lesire; Applicant: Miroik Nenkalash Lesire; Applicant: Serenoi Nenkalash Lesire; Applicant: Lerionke Sunte Nenkalash; Respondent: Mboi Lemaron
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 443 of 2017
- Procedural Posture
- Review Application / Ruling on Notice of Motion for Review of Judgment
- Outcome
- application dismissed with costs to the respondent
- Judges
- MN Gicheru
- Legal Topics
- Review of Judgment, Disclosure of Material Facts, Burden of Proof, Paternity Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sunte Nenkalash Lesire
Applicant
Miroik Nenkalash Lesire
Applicant
Serenoi Nenkalash Lesire
Applicant
Lerionke Sunte Nenkalash
Applicant
Mboi Lemaron
Respondent
Procedural Posture
Review Application / Ruling on Notice of Motion for Review of Judgment
Legal Issues
- 1 Whether the applicants have met the threshold for review of judgment under Order 45(1) of the Civil Procedure Rules.
- 2 Whether there was discovery of new and important evidence regarding the respondent's paternity after the judgment.
- 3 Whether there was a mistake or error apparent on the face of the record in the judgment of 7/10/2021.
Ratio Decidendi
The court found that the applicants failed to meet any of the three limbs required for review under Order 45(1) of the Civil Procedure Rules. The alleged new evidence regarding the respondent's paternity was not new, as it was addressed in the original judgment and could have been raised by the applicants during the trial. There was no mistake or error apparent on the face of the record, as the judgment dealt with the issue of paternity explicitly. No other sufficient reason was demonstrated to justify reopening the case. The court emphasized that litigation must come to an end and declined to allow the applicants to re-litigate matters that should have been addressed during the trial....
Court Disposition
application dismissed with costs to the respondent
Orders
- The notice of motion dated 6/11/2023 is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
Lesire & 3 others v Lemaron (Environment & Land Case 443 of 2017) [2024] KEELC 6160 (KLR) (24 September 2024) (Ruling)
Neutral citation: [2024] KEELC 6160 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 443 of 2017
MN Gicheru, J
September 24, 2024
Between
Sunte Nenkalash Lesire
1st Applicant
Miroik Nenkalash Lesire
2nd Applicant
Serenoi Nenkalash Lesire
3rd Applicant
Lerionke Sunte Nenkalash
4th Applicant
and
Mboi Lemaron
Respondent
Ruling
1. This ruling is on the notice of motion dated 6/11/2023. The motion which is by the plaintiffs seek the following main orders.
3. That this court be pleased to review, set aside or vary the orders issued on 7/10/2021 and any other orders issued subsequently as against the applicant in this matter.
4. That costs of this application be provided for.
2. The motion is based on ten (10) grounds and is supported by the affidavit of Sunte Nenkalash Lesire. In summary, the plaintiffs’ case is as follows. Firstly, the judgment of 7/10/2021 was made without full material disclosure to the court by the defendant in that he did not disclose to the court that he was a grandson and not a son of the late Nenkalash Lesire. Secondly, had the defendant disclosed this fact to the court, then the court would have arrived at a different conclusion because the defendant would have been ordered to claim from his own father and not his grandfather.
3. The motion is opposed by the defendant who has sworn a lengthy affidavit running into sixteen (16) pages. In the affidavit, he vehemently denies being a grandson of the deceased and says that he is the last born son of Jane Pion Nenkalash Lesire, the first wife of the deceased.
4. I have considered the motion in its entirety including the grounds and affidavits by both sides. Counsel for the parties were to file written submissions by 30/4/2024 but they did not do so. I find that the only issue for determination is whether the motion meets the threshold for review as per Order 45 (1) of the Civil Procedure Rules. For a matter to meet the said threshold, the applicant must establish the following.i.Discovery of new and important matter or evidence which was not within his knowledge or could not be produced by him at the time when the decree was passed.ii.Some mistake or error apparent on the face of the record.iii.Any other sufficient reason.
5. In applying the threshold set out in above provision to this case, the first question to ask is when the plaintiffs discovered that the defendant is a grandson of the deceased and not a son. Was it before or after the judgement of 7/10/2021. In the affidavit by Sunte Nenkalash, it is not disclosed when he made this discovery. He only says that the defendant did not disclose. Definitely, the discovery was much earlier than after the delivery of the judgment. The applicants make it look like it was only the defendant who could disclose that he was a grandson and not a son. Obviously, this is not the case. It was up to them to expose the weakness of their rival in this contest. Nobody stopped them from doing this. They had all the liberty to say this in their pleadings, evidence and even submissions. They never did. This issue of the defendant’s paternity was given three (3) paragraphs in the judgment of 7/10/2021. It is therefore not new. The court made a firm decision on it.
6. The second limb of mistake or error apparent on the face of the record has not been met either. The applicants have not said there is an error or mistake in the judgment of 7/10/2021. A mistake or error apparent on the face of the record has been described as one which stares at the court in the face. It is so obvious that it cannot escape the notice of the court. No such mistake or error exists in this case.
7. The final limb of the threshold is any other sufficient reason. No sufficient reason has been raised. In fact what has emerged is that the court is being asked to re-open the case to deal with an issue that should have been made the core of the trial by the plaintiffs but which they chose not to. Litigation must come to an end.
8. For the above stated reasons, I find no merit in the motion dated 6/11/2023 and I dismiss it with costs to the plaintiff.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 24THDAY OF SEPTEMBER 2024. M.N. GICHERUJUDGEIn the presence of:Mr. Mukuha for the plaintiff -present