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ELCPartially AllowedNot stated in judgment (Nyeri High Court; application dated 21st July 2014)· [2016] KEELC 508 (KLR)

Monicah Nyawira Wahome v Veronica Wambui [2016] KEELC 508 (KLR)

High Court of Kenya
10 August 2016
4,272 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Nyeri High Court set aside a land judgment because the woman missed the hearing due to her lawyer's mistake during settlement talks, but she paid the costs.

What this practically means

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Executive summary

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Veronica Wambui, the applicant, sought by notice of motion dated 21st July 2014 to review and/or set aside a judgment delivered on 4th July 2014 and consequential orders concerning land parcel Nyandarua/Kianjogu/Block1 (Muririchua)/133. She explained her non-attendance at the hearing arose from a mistake by her advocate and her belief the matter had been amicably settled during out-of-court negotiations, and alleged error in the inclusion of properties occupied by the family of Shelmith Wahome. The respondent, legal representative of the estate of Monica Nyawira Wambui Wahome, termed her a trespasser and opposed the application, arguing it was fatally defective for failure to extract and annex the decree and that review does not lie against a judgment. The court first addressed the extraction objection, adopting the emerging jurisprudence grounded in Article 159 of the Constitution and Sections 1A and 3A of the Civil Procedure Act, holding the omission a mere procedural technicality absent prejudice. On the merits, the court found the alleged error apparent on the face of the record could not succeed because it involved questions of fact requiring evidence. However, under 'any other sufficient reason,' the court accepted that the applicant's failure to attend was caused by her advocate while settlement negotiations were ongoing, and that allowing the judgment to stand might occasion unnecessary hardship. The court allowed the application, set aside the judgment, but condemned the applicant to pay the costs of the application. Judgment delivered at Nyeri on 10th August 2016 by L N Waithaka, Judge.

Key legal issues

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01

Effect of failure to extract and annex the decree in an application for review

Holding

The omission was a mere procedural technicality, not fatal, since the issues were discernable from the pleadings and no prejudice was demonstrated

Reasoning

The court noted divided authority: most cases hold the omission fatal, but emerging jurisprudence grounded in Article 159 of the Constitution and Sections 1A and 3A of the Civil Procedure Act treats it as non-fatal where the court can discern what is sought to be reviewed and no prejudice results. The court adopted the latter view, finding the issues discernable and no prejudice shown.

p. 5
02

Whether there was an error apparent on the face of the record

Holding

No; the alleged mistake involved questions of fact that required evidence and did not qualify under Order 45

Reasoning

The applicant argued the court should not have dealt with certain properties because she was in occupation. The court held such contentions are factual matters that ought to have been raised at the hearing; an error apparent must stare one in the face without two opinions and needs no evidence to prove, which these allegations do not satisfy.

p. 7
03

Whether 'any other sufficient reason' justified setting aside the judgment

Holding

Yes; the applicant's non-attendance was caused by her advocate while out-of-court settlement negotiations were ongoing, and allowing the judgment to stand might occasion unnecessary hardship

Reasoning

The parties were negotiating settlement and the court was not informed the negotiations had flopped. Relying on Patel v East Africa Cargo Handling Services, the court exercised its wide discretion to do justice, holding the advocate's mistake sufficient reason to review the judgment despite the applicant's responsibility for the situation.

p. 7

Legal principles established

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  • Failure to extract and annex the decree sought to be reviewed is not necessarily fatal; it is fatal only where it impairs the court's ability to fairly determine the issues or occasions prejudice
  • Section 80 of the Civil Procedure Act confers a wide and unfettered discretion on the court in review, and 'any other sufficient reason' need not be analogous with the other specified grounds
  • An error apparent on the face of the record does not require evidence to prove; a mere erroneous decision is not a ground for review
  • The court's discretion to vary or set aside its judgment is guided principally by doing justice to the parties

Court orders

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  1. 1.The judgment delivered on 4th July 2014 and all consequential orders issued against the applicant and her family concerning the suit property are reviewed and/or set aside
  2. 2.The applicant to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A and 3A
  • Civil Procedure ActSection 99
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 11
  • Constitution of Kenya, 2010Article 159
  • Land Registration Act, 2012Section 28

Cases cited (18)

  • Yusuf Kifuma v. Equity Bank of Kenya Limited & Another
    (2015) eKLR
  • Titus Mulandi Gitonga v. B.O (a minor suing through his mother & next friend SNO
    (2016) eKLR
  • Suleiman Murunga v. Nilestar Holdings Limited and another
    (2015) eKLR
  • Emkus Company Ltd v. Charles Asikowa Okolo
    (2014) eKLR
  • Eustace Mutegi Murungi & another v. Agrivine Kaburi Njoka
    (2016) eKLR
  • Abdullahi Mohamud v. Mohammud Kahiye
    (2015) eKLR
  • Nuh Nassir Abdi Vs Ali Wario & 2 Others
    (2013) eKLR
  • Stephen Boro Gitiha Vs Family Finance Building Society & 3 Others
    Civil Appeal Nairobi 263/2009
  • Nicholas Kiptoo Arap Korir Salat Vs IEBC & 6 Others
    [2013] eKLR
  • Raila Odinga & 5 Others Vs IEBC & 3 Others
    Petition 5/2013 SC [2013] eKLR
  • Official Receiver and Provisional Liquidator Nyayo Bus Service Corporation vs. Firestone EA (1969) Limited
    Civil Appeal No. 172 of 1998
  • Republic v Anti-Counterfeit Agency & 2 others Ex parte Surgipharm Limited
    [2014] eKLR
  • Sardar Mohamed vs. Charan Singh Nand Singh & Another
    HCCA No. 51 of 1959 [1959] EA 793
  • Anthony Gachara Ayub v. Francis Mahinda Thinwa
    (2014) eKLR
  • Draft and Develop Engineers Limited – v- National Water Conservation and Pipeline Corporation
    Civil Case No. 11 of 2011
  • Patel Vs East Africa Cargo Handling Services Limited
    (1974) EA 75
  • Lochab Bros. Limited V Peter Kaluma T/A Lumumba Mumma & Kaluma Advocates & 2 others
    (2013) eKLR
  • Orchid Pharmacy Limited v. Southern Credit Corporation Limited & 2 others
    (2015) eKLR
Jurisdiction invoked
Section 80 and Order 45 Rules 1 and 2 of the Civil Procedure Act and Rules (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Monicah Nyawira Wahome v Veronica Wambui [2016] KEELC 508 (KLR)", Case Analysis (2016). Not stated in judgment (Nyeri High Court; application dated 21st July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/508/eng@2016-08-10

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