Samuel Sigira A Koech v Vincent Kibet [2016] KEELC 636 (KLR)

Environment and Land Court

29 July 2016

MSMunyao Sila

3,257 words in judgment

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The bottom line

A Kenyan landowner lost his chance to overturn a trespass judgment because he waited over two years, and review is no substitute for an appeal.

What this practically means

Executive summary

The plaintiff, registered proprietor of land parcel Kericho/Kongotik/1200, had sued his step-son for trespass, seeking a permanent injunction and eviction. By a judgment delivered on 31st October 2013, Waithaka J dismissed the suit ex-parte, holding that although the plaintiff displayed a title deed, he did not exhibit a certificate of official search; that the defendant, being the son of the plaintiff's estranged wife, might hold overriding interests over what could be matrimonial property under Section 28 of the Land Registration Act; and that the plaintiff had adduced no evidence of trespass contrary to Section 107 of the Evidence Act. The plaintiff then applied by motion dated 13th October 2015 under Order 45 Rules 1 and 2(2) of the Civil Procedure Rules for review, contending that the requirement of an official search contravened Section 26(1) of the Land Registration Act, which makes a certificate of title prima facie evidence of absolute and indefeasible ownership. He relied on Nyamogo & Nyamogo Advocates v Kogo. The defendant did not respond. Munyao Sila J, hearing the matter under Order 45 Rule 2(2) following Waithaka J's transfer, dismissed the application. He held that the judgment was not based solely on the search issue, so no error apparent on the face of the record existed; the proper remedy was appeal. Independently, the application, filed over two years after judgment, suffered unreasonable delay which the plaintiff failed to explain. The application was dismissed with no orders as to costs, but the change of advocates to M/s Mwaka & Company was allowed.

Key legal issues

Whether the holding that the plaintiff should have exhibited an official search amounted to an error apparent on the face of the record

Holding

No. Even if the court were persuaded that requiring a search was wrong, the judgment was dismissed on multiple grounds including lack of evidence of trespass and possible overriding interests, so no single apparent error justified review; the remedy was appeal.

Reasoning

The court examined the judgment of Waithaka J and found it rested on several grounds: the plaintiff failed to prove trespass, called no witnesses, and the defendant may hold an overriding interest as the land may be matrimonial property. The search issue was therefore not the sole basis of dismissal. Relying on Nyamogo & Nyamogo Advocates v Kogo, the court distinguished a mere erroneous decision from an error apparent on the face of the record and held that disagreement with a possible view on the merits is an appellate issue, not a ground for review.

p. 5

Whether the application was filed without unreasonable delay

Holding

No. Filed on 30th December 2015, more than two years after judgment, and the plaintiff did not account for the period after the ruling of 24th September 2014.

Reasoning

The court held that while no fixed time limit exists, delay must be reasonable. The plaintiff chose not to attend judgment delivery and only sought the judgment copy in June 2015. Even excusing that, he offered no explanation for the period between the ruling of 24th September 2014 on the defendant's set-aside application and the filing of this application, a period of more than one year, which rendered the delay unreasonable.

p. 5

Legal principles established

A review court cannot sit as an appellate court over its own or another court's merits decision; where a judgment rests on multiple grounds, disagreement with the merits is a matter for appeal, not review.
An application for review must be filed without unreasonable delay, and the lapse of time must be assessed against all surrounding circumstances.

Court orders

1.The application for review dated 13th October 2015 is dismissed
2.No orders as to costs, since the defendant did not oppose the application
3.The order seeking the law firm of M/s Mwaka & Company Advocates to come on record is allowed

Authorities

Legislation

Civil Procedure RulesOrder 45 Rules 1 and 2(2)
Civil Procedure ActSections 1A, 1B, 3A
Land Registration Act 2012Section 26(1); Section 28
Evidence Act (Cap 80) Laws of KenyaSection 107

Cases cited (1)

Nyamogo & Nyamogo Advocates vs Kogo
(2001) EA 170

Jurisdiction invoked: Order 45 Rules 1 and 2(2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Samuel Sigira A Koech v Vincent Kibet [2016] KEELC 636 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/636/eng@2016-07-29

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