Thomas Gatura Gathu v Joreth Limited & 2 others [2017] KEELC 1249 (KLR)
The bottom line
#A Kenyan court refused to reopen a land sale settlement, ruling that parties who were already heard must appeal rather than seek review.
What this practically means
#Executive summary
#Key legal issues
#Whether the grounds advanced amount to 'sufficient reason' for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
No. The applicants were heard before the consent was adopted and are merely re-litigating matters already decided; their remedy is an appeal, not review
The court found the 2nd and 3rd defendants had filed a replying affidavit opposing the consent and their objections were considered by Mutungi J before adoption. The same grounds now advanced were before that court. Granting review would permit a second bite at the cherry and effectively an appeal against a judge of the same court. The proper forum of redress is an appeal against the ruling allowing adoption of the consent.
Whether the 2nd and 3rd defendants were condemned unheard in breach of natural justice
No, they were afforded an opportunity to be heard on the same grounds prior to the adoption of the consent
Before adoption of the consent the 2nd and 3rd defendants filed a replying affidavit sworn on 4th April 2014 objecting to the consent as prejudicial and as determining the suit without a hearing. Mutungi J considered the merits of those objections and found the plaintiff was at liberty to compromise his suit with all or any of the defendants. The allegation of condemnation unheard was therefore factually incorrect.
Whether a temporary injunction should issue in favour of the 2nd and 3rd defendants
No. In the absence of a counterclaim directed against a specified party, and given the application sought a restraining rather than a conservatory order, the interlocutory injunction could not issue
The consent dated 28/2/2013 compromised the suit between the plaintiff and the 1st defendant. A defendant's interlocutory injunction under Order 40 ought to be predicated on a counterclaim and satisfy the Giella v Cassman Brown criteria. The 2nd and 3rd defendants had no counterclaim against any specified party. Although the court may in special circumstances grant a preservatory order without a counterclaim, what was sought was a restraining order, and given the history of the dispute this was inappropriate.
Legal principles established
#- Applications for review must be treated with caution so that review is not used as an appeal against a decision of the same court or to re-litigate a decided issue
- 'Any other sufficient reason' under Order 45 Rule 1(1) need not be analogous with the other grounds specified in the Order
- An interlocutory injunction sought by a defendant must be predicated upon a counterclaim and satisfy the Giella v Cassman Brown criteria
Court orders
#- 1.The Notice of Motion dated 29/5/2014 by the 2nd and 3rd defendants is dismissed for lack of merit
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction); Order 40 of the Civil Procedure Rules (interlocutory injunction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Gatura Gathu v Joreth Limited & 2 others [2017] KEELC 1249 (KLR)", Case Analysis (2017). Notice of Motion dated 29/5/2014 in the principal suit (plaint dated 30/4/2001). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1249/eng@2017-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.