Eliud Njuguna Mwangi & 1 other v John Kibiwot Kibowen

The Court reproduced Section 80 of the Civil Procedure Act and Order 45 Rule 1, which confine review to discovery of new and important matter not obtainable with due diligence, error apparent on the face of the record, or other sufficient reason, without unreasonable delay. Endorsing National Bank of Kenya Ltd vs Njau, it held a reviewable error must be self-evident. The private surveyor was engaged only after the impugned ruling, so the evidence could have been obtained earlier; the plea was in substance a disguised appeal and an abuse of process.

The Court restated the classic bounds of review from National Bank of Kenya Ltd vs Njau: review corrects an apparent error or omission on the part of the court, but the error must be self-evident and not need elaborate argument. It is not sufficient that another judge could have taken a different view or that the court proceeded on an incorrect exposition of the law. The appellants' attack on the credibility of the surveyor's report and sketch maps amounted to a request to re-evaluate evidence, which review does not permit.

Section 7 of the Civil Procedure Act prohibits a court from trying any issue directly and substantially in issue in a former suit between the same parties that was heard and finally decided. Relying on Kithaka vs Wangari, the Court stressed that litigation must come to an end and that a court cannot be asked to determine the same issue repeatedly; the Supreme Court's decision in Kenya Commercial Bank Ltd vs Muiri Coffee Estate confirms that res judicata secures order and efficacy in adjudication. The prayers for cross-examination and resurvey had been determined in the ruling of 7th May 2019.