Kore Forests Limited v Attorney General & 9 others [2016] KEELC 409 (KLR)
The bottom line
#Kenya's High Court confirmed that even people who were never party to a lawsuit can apply to have court orders affecting their property reviewed and set aside.
What this practically means
#Executive summary
#Key legal issues
#Whether a non-party may apply for review
Yes; section 80 and Order 45 use 'any person who considers himself aggrieved', which includes a non-party with a direct interest. The applicant's uncontroverted evidence of ownership of the suit property established sufficient cause.
The court noted section 80 opens with 'any person who considers himself aggrieved' and Order 45 uses similar words. Relying on Ngororo vs Ndutha, it held 'any person' is not 'any party'. The applicant's facts about acquisition of Kwale/Msambweni A/1707 were uncontroverted by any party, including the plaintiff, and were supported by documents, showing the applicant was aggrieved.
Whether the court was functus officio
No. The applicant was not seeking to re-open or re-try the matter but to review the decree, which section 80 expressly permits.
The plaintiff relied on the Telkom case, where parties wanted to re-open a determined matter by adducing further evidence. The court distinguished it: the applicant here sought review or setting aside of the decree, not a retrial. Since the statute creates review of decrees and orders, a review application is not barred by functus officio.
Whether a consent order can be set aside by an outsider to the consent
The distinction between a contested judgment and a consent decree is immaterial on review; in any event the consent was not signed by the interested parties and the record revealed fraud/collusion.
The court held the core of the application was whether the grounds for review were met, not grounds for setting aside a consent judgment. It further observed the consent was signed by the plaintiff and defendants but not the interested parties, who nonetheless benefited, which the court found to be fraud/collusion apparent from the documents.
Legal principles established
#- A person who is not a party to a suit but whose direct interest is affected by a judgment or order is entitled to apply for review under section 80 of the Civil Procedure Act.
- A court entertaining a review application under section 80 is not functus officio; review is the statutory exception to the finality of decisions.
Court orders
#- 1.The order issued on 9th December 2015 (consent order) and all consequential orders emanating from it be reviewed and set aside.
- 2.The applicant (Sominam Limited) be joined as the 7th defendant to the proceedings and the matter proceed with its participation.
- 3.Costs of the application abide the outcome of the main suit.
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act, Order 45 Rule 1 and Order 40 Rule 1 of the Civil Procedure Rules and the inherent power of the Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kore Forests Limited v Attorney General & 9 others [2016] KEELC 409 (KLR)", Case Analysis (2016). Not stated in the extract (application dated 21st January 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/409/eng@2016-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.