[2018] KEELC 119 (KLR)
The court found that the documents presented as new evidence by the applicant could have been obtained with due diligence prior to the hearing and should have been produced at trial by competent witnesses. The court held that admitting such documents at the review stage, without proper production and authentication,...
Source-derived case information.
- Citation
- [2018] KEELC 119 (KLR)
- Parties
- Plaintiff: Registered Trustees Legions of Mary; Defendant: Mary Tioko Ekuwom
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 11 of 2017
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- Application partially allowed.
- Judges
- FM Njoroge
- Legal Topics
- Review of Judgment, New Evidence, Allotment Discrepancy, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Registered Trustees Legions of Mary
Plaintiff
Mary Tioko Ekuwom
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the applicant has met the threshold for review of judgment based on discovery of new evidence.
- 2 Whether the new evidence could have been obtained with due diligence before the trial.
- 3 Whether the court should vary the costs order in the original judgment.
Ratio Decidendi
The court found that the documents presented as new evidence by the applicant could have been obtained with due diligence prior to the hearing and should have been produced at trial by competent witnesses. The court held that admitting such documents at the review stage, without proper production and authentication, would undermine the legal process. The court also noted that the purported map did not show the plot number claimed by the applicant. Consequently, the application for review lacked merit except as to the order for costs, which was varied to reflect that there would be no order as to costs.
Court Disposition
Application partially allowed.
Orders
- The judgment is reviewed to reflect that there will be no orders as to costs.
- All other prayers in the application are dismissed.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC CASE NO. 11 OF 2017
REGISTERED TRUSTEES LEGIONS OF MARY...................PLAINTIFF
VERSUS
MARY TIOKO EKUWOM.......................................................DEFENDANT
RULING
1. The plaintiff filed an application dated 8th October, 2018 and filed in court on the same date seeking that this honourable court be pleased to review and or vary its judgment dated and delivered on 19th September, 2018 and orders made therein. It also pray for costs of this application be provided for.
2. The grounds upon which the application is made are contained at the foot of the application. They are that the court dismissed the plaintiff suit on the ground that there was a discrepancy between the name of the allottee in the letter of allotment and the plaintiff/applicant; that the applicant has found new evidence from the Lands Office of the County government of Turkana that was not available at the time of the trial with all due diligence and that a Physical Planning Map indicating the position of the plot in issue has also become available.
3. In the supporting affidavit it is stated by the deponent that before the judgement the applicant did not appreciate the apparent discrepancy in its letter of allotment with regard to plot 221 Nakwamekwi in Lodwar; that the St. Monica Bethlehem is one of the churches of Legion of Mary in Turkana; that the County Government of Turkana on 27/8/2018 clarified that Plot No 221 belongs to the plaintiff/applicant; that the respondent was awarded costs despite not having appeared or filed a defence.
4. I have examined the exhibit marked “PEE 1A” attached to the supporting affidavit. It is a letter from the Land Administrator Turkana Central sub-county stating that Legion Maria of African Church Mission St. Monica Bethlehem owned the suit land measuring 2 acres.
5. One of the conditions for the grant of an order of review is that the evidence purported to be new was not available at the time of the trial or could not with all due diligent have been obtained by the party seeking review orders.
6. I have examined the purported new evidence comprised in “Exhibit PEE1a” and “Exhibit PEE1b”and in my view these were documents that could have been easily obtained by the plaintiff for production at the hearing of the suit by witnesses competent to do that.
7. Furthermore reviewing the judgment on the basis of a document that has not been produced at the trial by a witness such exhibits marked “PEE1a” and “PEE1b” may make a mockery of the legal process. This court can never truly establish at the review stage as to where the exhibits truly emanated from.
8. Besides I have pored over the purported map Exhibit “PEE1a”and found no plot bearing the number 221 that being the number of the plot claimed by the plaintiff.
9. Any grant application for review by a party who may appear to attempt to sidestep the recognized methods of proof of his claim in litigation must be avoided lest the court grant him a judgment which he would not have otherwise obtained had he been compelled to call evidence in the normal manner.
10. The makers of the documents attached as exhibits were not called to produce them. The court has no basis for allowing them in the application for review.
11. No orders of setting aside of the entire judgment has been sought. The court had observed in its judgment dated 19/9/2018 that it is not convinced the plaint contained any justiciable cause of action.
12. Save for the order regarding the payment of costs the application has no merit.
13. I grant the application only to the extent that the judgment is hereby review to reflect that there will be no orders as to costs.
It is so ordered.
Dated, signed and delivered at Kitale on this 3rd day of December, 2018.
MWANGI NJOROGE
JUDGE
3/12/2018
Coram:
Before -Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
N/A for applicant
N/A for respondent
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
3/12/2018