Ernest Sifuna Simwero v Jared Mwimali Mukwandala (deceased) & another [2020] eKLR Case Summary

Court
Environment and Land Court at Kakamega
Category
Civil
Judge(s)
N.A. Matheka
Judgment Date
October 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Ernest Sifuna Simwero v Jared Mwimali Mukwandala (deceased) & another [2020] eKLR


1. Case Information:
- Name of the Case: Ernest Sifuna Simwero v. Jared Mwimali Mukwandala (deceased) and Paul Muchuma Mwimali
- Case Number: ELC Case No. 90 of 2016
- Court: Environment and Land Court at Kakamega
- Date Delivered: 26th October 2020
- Category of Law: Civil
- Judge(s): N.A. Matheka
- Country: Kenya

2. Questions Presented:
The central legal issues presented before the court include:
1. Whether the application for review of the judgment delivered on 17th December 2019 is valid given that the original defendant had passed away prior to the proceedings.
2. Whether the application is res judicata, thus barring the reopening of the case.
3. Whether the court has the jurisdiction to stay the execution of its own decree in the absence of an appeal.

3. Facts of the Case:
The plaintiff, Ernest Sifuna Simwero, initiated a civil suit against the deceased defendant, Jared Mwimali Mukwandala. Following the death of the defendant on 14th October 2019, the case proceeded with hearings on 16th October 2019, during which the defendant's counsel was not aware of the death. Consequently, a judgment was rendered on 17th December 2019. Paul Muchuma Mwimali, the applicant, sought to substitute the deceased defendant and requested a review of the judgment, claiming that the prior proceedings were null and void due to the defendant's death.

4. Procedural History:
The application dated 30th June 2020 was filed under various provisions of the Civil Procedure Rules and the Civil Procedure Act. The applicant sought multiple orders, including the substitution of the deceased defendant and the review of the judgment. The plaintiff raised a preliminary objection based on res judicata, asserting that the matter had already been adjudicated. The court initially considered the objection and subsequently ruled on the merits of the application.

5. Analysis:
- Rules: The court referenced Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, which outline the grounds upon which a party may seek a review of a judgment. The applicant needed to demonstrate a new and important matter or an apparent error on the face of the record.

- Case Law: The court cited several precedents, including *Kwame Kariuki & Another v. Mohamed Hassan Ali & 4 Others* (2014) and *Mwihoko Housing Company Limited v. Equity Building Society* (2007), emphasizing that a review is only permissible when there is clear evidence of an error or new evidence. The court also referred to *National Bank of Kenya v. Ndungu Njau* (1996), which reiterated the necessity for an apparent error to warrant a review.

- Application: The court found that the applicant failed to demonstrate any error on the part of the court. It noted that the proceedings were valid, as the defendant was represented by counsel during the hearings. The court concluded that the applicant's claims did not meet the threshold for review, as he did not provide sufficient grounds for the court to set aside its previous judgment.

6. Conclusion:
The court dismissed the applicant's application, ruling that the original proceedings were not null and void and that the application did not warrant a review. The court emphasized that the proper recourse for the applicant would be to file an appeal against the judgment rather than seek a review.

7. Dissent:
There were no dissenting opinions recorded in this case.

8. Summary:
The Environment and Land Court at Kakamega ruled against Paul Muchuma Mwimali's application to review the judgment issued on 17th December 2019, concluding that the proceedings were valid despite the defendant's death. The court's decision underscores the importance of adhering to procedural norms and the limitations of seeking a review in the absence of clear errors or new evidence. This case reinforces the principle that parties must act promptly and within the confines of the law when addressing judgments.

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