[2018] KEELC 1023 (KLR)
The court found that the application for review was not properly before it, as the applicant was essentially seeking to introduce new evidence after judgment, which is not permissible under the rules governing review. The court noted that the applicant should have pursued an appeal if dissatisfied with the judgment....
Source-derived case information.
- Citation
- [2018] KEELC 1023 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman Land Disputes Tribunal Meru Central District; Interested Party: Kimwere Mutuota; Interested Party: Director of Land Adjudication and Settlement; Exparte Applicant: Zacharia Mputhia M’Ithirai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 37 of 2010
- Procedural Posture
- Judicial Review / Ruling on Application for Review or Setting Aside of Judgment
- Outcome
- application struck out with costs
- Legal Topics
- Review of Judgment, Adducing Fresh Evidence, Res Judicata, Appeals Vs Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman Land Disputes Tribunal Meru Central District
Respondent
Kimwere Mutuota
Interested Party
Director of Land Adjudication and Settlement
Interested Party
Zacharia Mputhia M’Ithirai
Exparte Applicant
Procedural Posture
Judicial Review / Ruling on Application for Review or Setting Aside of Judgment
Legal Issues
- 1 Whether the applicant is entitled to review or setting aside of the judgment delivered on 22.6.2018.
- 2 Whether adducing new evidence after judgment is permissible.
- 3 Whether the matter is res judicata and if that issue was already determined.
Ratio Decidendi
The court found that the application for review was not properly before it, as the applicant was essentially seeking to introduce new evidence after judgment, which is not permissible under the rules governing review. The court noted that the applicant should have pursued an appeal if dissatisfied with the judgment. Additionally, the issue of res judicata had already been addressed in the original judgment. The court concurred with the respondent and interested party that the application was procedurally improper and lacked merit, leading to its dismissal with costs.
Court Disposition
application struck out with costs
Orders
- The application dated 22.8.2018 is struck out with costs to the respondent and the interested party.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC JUDICIAL REVIEW 37 OF 2010
REPUBLIC.............................................................................APPLICANT
VERSUS
CHAIRMAN LAND DISPUTES TRIBUNAL
MERU CENTRAL DISTRICT...................................1ST RESPONDENT
KIMWERE MUTUOTA........................................INTERESTED PARTY
DIRECTOR OF LAND
ADJUDICATIONAND SETTLEMNT........2ND INTERESTED PARTY
AND
EXPARTE........................................ZACHARIA MPUTHIA M’ITHIRAI
RULING
1. Judgment herein was delivered on 22. 6.2018. Thereafter, the exparte applicant filed a notice of motion dated 23. 8.2018 where he is seeking a review and/or the setting aside of the said judgment.
2. When the application came up for hearing on 26. 9.2018, Mr. Kiongo for the respondent averred that the application is not properly before the court as applicant ought to have lodged an appeal and not seek a review. Mr. Muthamia, counsel for the interested party concurred with the sentiments of the respondent.
3. I have looked at the notice of motion, it appears that applicant wants to adduce more evidence after judgment has been delivered. A perusal of the judgment of 12. 6.2018 indicates that the court considered the annexures which had been availed by the exparte applicant. These were three namely ZMT – 01, ZMT – 02 and ZMT – 03 which are mentioned in paragraph 5, 8 and 11 of the affidavit of Zachary Mputhia Mithari. So where is ZMT – 04 coming from? There is no basis for adducing evidence after Judgment has been delivered.
4. The other issue raised by the applicant is that the matter is Res-Judicata. That is an issue which the court dealt with in the Judgment.
5. I concur with the sentiments of the respondent and the interested party that this application is not properly before the court and that applicant ought to have appealed if he was dissatisfied. The application dated 22. 8.2018 is hence struck out with costs to respondent and the interested party.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 31ST DAY OF OCTOBER, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
Exparte applicant present
HON. LUCY. N. MBUGUA
ELC JUDGE