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Court of AppealDismissedCivil Appeal No. 300 of 2014· [2017] KECA 636 (KLR)

Tiras Karanja Ngatha v Silas Gachugu Ngugi & 1 other

Court of Appeal
24 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
2,749 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a court order can be reviewed after it has been executed, where an unintended mistake in land boundaries occurred.

What this practically means

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Executive summary

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The appellant and the deceased were adjacent landowners registered under the repealed Registered Land Act, but through a mutual mistake undiscovered for some 40 years each occupied and developed the other's parcel, leaving the appellant with 0.5 acres more than his registered entitlement. After the deceased's death, the 1st respondent obtained letters of administration and the appellant filed an originating summons claiming adverse possession, alternatively rectification of the register. By a ruling of 16th April 2013, the Environment and Land Court (Mutungi, J.) stayed the succession cause and ordered rectification so that titles corresponded with occupation, but without accounting for the 0.5-acre disparity. The 1st respondent applied for review under section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rules, and by the ruling of 27th July 2014 the learned judge found sufficient reason for review and ordered the appellant either to pay the value of the 0.5 acres or to subdivide and transfer it to the 1st respondent. The appellant appealed on two grounds: that the judge misapprehended the grounds for review, and that execution of the earlier order barred review. The Court of Appeal, in a single judgment of the court, dismissed the appeal. It endorsed the settled line of authority that 'any other sufficient reason' in Order 45 Rule 1 is not confined to grounds analogous with the other specified grounds, and held that the unintended transfer of 0.5 acres constituted sufficient reason for review. It further held that implementation of the earlier order was no bar to review since nothing irreversible had occurred, and affirmed the decision below with costs to the respondents.

Key legal issues

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01

Whether the review application disclosed 'other sufficient reason' under Order 45 Rule 1

Holding

Yes; the unintended conferral of 0.5 acres on the appellant by the rectification order constituted sufficient reason for review, even though not pleaded under that label

Reasoning

The Court agreed the application was not based on new evidence or error apparent on the face of the record, but held that the grounds and supporting affidavit showed reliance on 'other sufficient reason', namely that the review applicant's parcel had ended up 0.5 acres smaller than his registered entitlement while the appellant's became larger. The Court endorsed the line of authority holding 'other sufficient reason' not to be confined to the other specified grounds.

p. 4
02

Whether execution of the order of 16th April 2013 barred review

Holding

No; execution is not a bar where nothing irreversible has happened

Reasoning

The appellant argued that once the rectification order had been implemented there was nothing left to review. The Court rejected this, holding that all that had happened was that the appellant had been registered as owner of an extra 0.5 acres he was not entitled to; he could pay its value or have it excised, so the review order was not futile or issued in vain.

p. 5

Legal principles established

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  • The words 'any other sufficient reason' in Order 45 Rule 1(1) are not confined to grounds analogous with the other specified grounds for review and confer an unfettered discretion to review for any sufficient reason
  • Implementation or execution of an order does not, of itself, bar a subsequent review of that order where nothing irreversible has occurred

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs to the respondents
On appeal from
Environment and Land Court at Nairobi
ELCC No. 772 of 2012
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over appeals from the Environment and Land Court (the judgment does not expressly cite the provision)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tiras Karanja Ngatha v Silas Gachugu Ngugi & 1 other", Case Analysis (2017). Civil Appeal No. 300 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/636/eng@2017-03-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.