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ELCDismissedNotice of Motion dated 19th October 2015 (arising from suit over Plot ELD/17/94/15A(3) Plot No. 78 Zone S)· [2016] KEELC 1164 (KLR)

Grace Akinyi v Gladys Kemunto Obiri & another [2016] KEELC 1164 (KLR)

High Court of Kenya
22 January 2016
2,790 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The High Court dismissed a landowner's attempt to revisit an earlier ruling, confirming that disagreements with a judge's decision belong on appeal, not review.

What this practically means

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Executive summary

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Grace Akinyi (applicant) moved the High Court at Eldoret by Notice of Motion dated 19th October 2015 seeking review and/or setting aside of the court's ruling and orders of 30th September 2015, which had dismissed her application dated 6th July 2015 and discharged temporary injunction orders, and seeking maintenance of status quo pending the main suit. She relied on alleged errors apparent on the face of the record: that the ruling was made on Plot ELD/17/94/15A Zone SA(1) rather than the sued Plot ELD/17/94/15A(3) Zone S; that crucial evidence, including a 1995 receipt issued to Francis Gicharo Woota, correspondence with the defunct Eldoret Municipal Council, a map and photographs, was not considered; and that the court relied on a Ministry of Lands report concerning a different parcel. The respondents, Gladys Kemunto Obiri and Uasin Gishu County Government (through Legal Officer Kenneth Mutai), opposed, contending there was no error on the face of the record and that the applicant was improperly seeking to introduce new evidence never adduced at the injunction hearing, without leave or due diligence explanation. Antony Ombwayo J held that complaints about failure to consider or analyse evidence are grounds of appeal, not review; that the two-plots issue had been extensively deliberated and determined in the ruling with no apparent error; and that prejudice from the ruling is a matter for the Court of Appeal. Applying section 80 of the Civil Procedure Act, Order 45 Rule 1(b) and the National Bank of Kenya v Ndungu Njau standard that an apparent error must be self-evident, the court found the applicant had not met the threshold and dismissed the application with costs.

Key legal issues

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01

Whether there was an error apparent on the face of the record arising from the court's findings on two different plots

Holding

No error apparent on the record; the two-plots issue was extensively deliberated and determined by the judge, who found that Francis G. Woota was allocated Plot ELD/17/94/15A(3) Zone S while the 1st respondent was allotted Plot ELD/17/94/15A Zone SA(1)

Reasoning

The court found that the discrepancy over the two plots had been extensively deliberated and determined in the earlier ruling. The judge had expressly found that Woota, from whom the applicant bought, was allocated Zone S while the 1st respondent held the allotment to Zone SA(1). Since the earlier ruling consciously resolved the matter, no self-evident mistake on the record arose to warrant review.

p. 4
02

Whether failure to consider evidence and reliance on new documents are grounds for review under Order 45

Holding

No; such complaints are grounds of appeal, and new evidence cannot be introduced through review without due diligence explanation

Reasoning

The court held that complaints that the judge did not consider crucial evidence, failed to analyse photographs, or relied on documents not in the record are properly matters for appeal. Under Order 45 Rule 1(b), review requires new and important matter which with due diligence could not have been produced, or an error apparent on the face of the record. The applicant could not satisfy these requirements, and the respondents opposed introduction of new documents.

p. 5
03

Whether prejudice from the ruling is a ground for review

Holding

No; dissatisfaction with the decision and allegations of prejudice are matters for the Court of Appeal

Reasoning

The applicant argued she would suffer irreparable injury and prejudice from the ruling. The court held that whether she would suffer such injury or prejudice is a matter for the Court of Appeal, since she is plainly dissatisfied with the decision and her remedy lies in an appeal, not in an application for review before the same court.

p. 4

Legal principles established

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  • Failure to consider crucial evidence or failure to analyse evidence is a ground of appeal, not a ground for review
  • An error apparent on the face of the record must be self-evident and not require elaborate argument to establish
  • A party cannot introduce new evidence not previously adduced as a basis for review without explaining why it could not have been produced at the time with due diligence

Court orders

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  1. 1.The applicant's Notice of Motion dated 19th October 2015 seeking review of the ruling and orders of 30th September 2015 is dismissed
  2. 2.Costs awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1(b) (and Rule 1(1), (2))
  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 80
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • National Bank of Kenya Vs Ndungu Njau
    Civil Appeal No. 2111 of 1996
Jurisdiction invoked
Order 45 Rule 1(b) of the Civil Procedure Rules and section 80 of the Civil Procedure Act, Cap. 21 Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Grace Akinyi v Gladys Kemunto Obiri & another [2016] KEELC 1164 (KLR)", Case Analysis (2016). Notice of Motion dated 19th October 2015 (arising from suit over Plot ELD/17/94/15A(3) Plot No. 78 Zone S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1164/eng@2016-01-22

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