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ELCDismissedPetition (Election Petition) - Notice of Motion dated 3rd July 2017· [2017] KEELC 320 (KLR)

Trusted Society of Human Rights Alliance v Mohammed Hussein Mulla Nanji Trust, National Land Commission & Attorney General (Environment & Land Case 35 of 2016) [2017] KEELC 320 (KLR)

Environment and Land Court of Kenya
15 December 2017
1,402 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to review its own judgment because the losing party waited 73 days and argued about the evidence instead of pointing to a clear error.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Ohungo J) disposed of the petitioner's Notice of Motion dated 3rd July 2017 seeking review and/or setting aside of the judgment delivered on 20th April 2017, together with an order maintaining the status quo before judgment. The application was brought under Section 80 of the Civil Procedure Act and Order 45 rules 1 and 2 of the Civil Procedure Rules, supported by an affidavit of Elijah Sikona, chairman of the petitioner, alleging error apparent on the face of the record. The 1st respondent opposed through grounds of opposition and a replying affidavit of Lawson Ondieki, contending the application was an attempt to re-argue the case on the same facts and an abuse of process; the 2nd respondent took no position and the 3rd did not participate. The court applied Order 45 rule 1, noting that review lies on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and must be made without unreasonable delay. Relying on Jameny Mudaki Asava, Origo v Mungala, and Jaber Mohsen Ali, the court found that the applicant cited no new matter, did not invoke 'other sufficient reason', and failed to specifically identify any error apparent - its real complaint being an erroneous conclusion on the evidence, a ground of appeal not review. The application, filed 73 days after judgment with no explanation, was held to have been brought after unreasonable delay. The Notice of Motion was dismissed with costs.

Key legal issues

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01

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

Holding

No; the error was not specifically identified and the applicant's real complaint was that the court reached an erroneous conclusion after assessing the evidence, which cannot be a ground for review

Reasoning

Order 45 rule 1 permits review on discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason. The applicant cited no new matter and did not invoke 'other sufficient reason'. The only ground indirectly raised was error apparent, but it was never specifically identified; what the applicant actually alleged was that the court mis-assessed the evidence, which is a matter for appeal, not review.

p. 2
02

Whether the 73-day delay in filing the application was unreasonable

Holding

Yes; the delay of 73 days in seeking review of a final judgment, unexplained, was inordinate and unreasonable

Reasoning

A review application must be brought without unreasonable delay, what constitutes such delay varying from case to case; even one day may suffice. Here judgment was delivered on 20th April 2017 and the application filed on 4th July 2017, some 73 days later, with no explanation. Certainty for litigants requires that challenges to final judgments be raised promptly, so the delay was held unreasonable.

p. 2

Legal principles established

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  • An erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal
  • An application for review must be made without unreasonable delay, and even one day after judgment may be unreasonable depending on circumstances

Court orders

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  1. 1.Notice of Motion dated 3rd July 2017 dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 45 rules 1 and 2

Cases cited (4)

  • Jameny Mudaki Asava v Brown Otengo Asava & another
    [2015] eKLR
  • Origo & Another vs Mungala
    [2005] 2 KLR 307
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    E&L NO. 200 OF 2012 [2014] eKLR
  • Christopher Kendagor v Christopher Kipkorir
    Eldoret E&LC 919 of 2012
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rules 1 and 2 of the Civil Procedure Rules, 2010

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, "Trusted Society of Human Rights Alliance v Mohammed Hussein Mulla Nanji Trust, National Land Commission & Attorney General (Environment & Land Case 35 of 2016) [2017] KEELC 320 (KLR)", Case Analysis (2017). Petition (Election Petition) - Notice of Motion dated 3rd July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/320/eng@2017-12-15

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