Amos Wamunyu v Tabitha Wanjiru Omollo & another [2015] KEELC 364 (KLR)
The bottom line
#A Kenyan court corrected land court orders despite delay, using its inherent powers where the strict grounds for review were not met.
What this practically means
#Executive summary
#Key legal issues
#Whether the requirements of Order 45 Rule 1 for review were satisfied
The strict grounds for review were not established; the application was premised on a change of circumstances, not new matter or error on the face of the record
The court set out Order 45 Rule 1 and found the applicant did not rely on discovery of new and important matter or an error apparent on the face of the record. Instead, the application was founded on the sub-division of the original parcel in 2008 creating new titles, which is a change of circumstances rather than a ground for review. Nevertheless the court invoked its inherent powers under Section 3A to grant relief.
Whether there was unreasonable delay in bringing the application
There was inordinate and unexplained delay, the applicant's explanation being unsatisfactory
The orders sought to be reviewed were issued in 1997 and 2000, while the sub-division creating the new titles occurred in 2008. The applicant lodged a caution in 2008 showing he knew the property had changed hands, yet filed the application only in 2011, waiting at least three years. His explanation that he was waiting for the original parcel to be shared out was found unsatisfactory.
Whether the court should nonetheless allow the review
The application was allowed in terms of prayer 1 in exercise of the court's inherent jurisdiction under Section 3A, considering the special circumstances and the subsisting consent orders
Despite the failure to meet the strict review thresholds and the unexplained delay, the court weighed the special circumstances: the consent orders of 1997 and 2000 had never been set aside, the applicant's portion was never excised and transferred, and allowing the amendment would avoid endless litigation over the suit property. The court therefore allowed the application in terms of prayer 1 under Section 3A of the Civil Procedure Act.
Legal principles established
#- Review under Order 45 Rule 1 lies only on discovery of new and important matter, error apparent on the face of the record or other sufficient reason, and the application must be made without unreasonable delay
- The court may, in the exercise of its inherent jurisdiction under Section 3A of the Civil Procedure Act, allow an application even where strict requirements for review are not met, taking into account special circumstances such as subsisting consent orders
Court orders
#- 1.Review allowed in terms of prayer 1, amending the orders of 29th October 1997 and 10th April 2000 to read the respondents' land as No. Nyeri/Municipality/Block 12/38 which formed after the sub-division of the original suit land No. 8470/18
- 2.Each party to bear their own costs for the application
- Jurisdiction invoked
- Order 45 Rule 1(1) and (2) and Order 51 Rule 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amos Wamunyu v Tabitha Wanjiru Omollo & another [2015] KEELC 364 (KLR)", Case Analysis (2015). Miscellaneous Application (Review) arising from Nyeri High Court Miscellaneous Civil Application No. 81 of 1996 (originally Nyeri SPMCCC No. 407 of 1995). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/364/eng@2015-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.