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ELCDismissedNot stated in the excerpt (plaint filed 31 May 2016)· [2017] KEELC 1611 (KLR)

Loyce Jerop Chelagat v Herman Marine Nderi & 8 others [2017] KEELC 1611 (KLR)

Environment & Land Court
21 September 2017
MSMUNYAO SILA
2,083 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff filed an application dated 15 March 2017 under Order 45 Rules 1, 2 and 5 seeking review of the ruling of 22 February 2017 on her injunction application. In that ruling, the court, finding ownership of Lenginet Settlement Scheme/637 heavily contested, decided the injunction application on a balance of convenience and placed possession of the suit properties with the 1st - 8th respondents pending trial, while barring developments and inhibiting any change of proprietorship over the subdivisions 1368 to 1403. The applicant sought review on the ground that the court misapprehended the fact of possession, insisting she had been in possession since 1999 and that the subdivision was done only on paper; she also asked the Deputy Registrar to visit the land and report on possession. The respondents opposed, maintaining that they are in possession and have ploughed the land. The court held that an erroneous view of evidence is a ground for appeal, not review, following Abasi Balinda vs Frederick Kangwamu and National Bank of Kenya vs Ndungu Njau, and that no error apparent on the face of the record existed, since establishing the factual position on the ground would require fresh fact-finding. The application for review was dismissed with costs, and the orders of 22 February 2017 were left in force until the suit is heard and determined.

Key legal issues

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01

Whether the court's misapprehension of the facts of possession constitutes an error apparent on the face of the record

Holding

No - a mistake in the court's appreciation of the evidence is a ground for appeal, not review

Reasoning

The court reiterated the three grounds for review under Order 45: discovery of new matter, error apparent on the face of the record, and other sufficient reason. The applicant's grievance was that the court doubted her possession, which amounts to an erroneous view of the affidavit evidence. Following Abasi Balinda vs Frederick Kangwamu, such an error is appealable but not reviewable. The claimed error also required fresh ascertainment of facts on the ground, confirming it was not self-evident on the record.

p. 3
02

Whether the application disclosed discovery of new matter or other sufficient reason

Holding

No - the application sought a second bite of the cherry without fitting within Order 45 Rule 1

Reasoning

The court found no new matter had been discovered; the applicant merely wanted the court to revisit its conclusion that possession should lie with the respondents pending trial. Review is not meant to allow a party who loses an interlocutory application a fresh hearing. The ruling of 22 February 2017 was left intact, with parties still barred from developments, dispositions and changes of proprietorship.

p. 3

Legal principles established

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  • An erroneous view of evidence or of law is not a ground for review, though it may be a good ground for an appeal
  • An error on the face of the record must be self-evident and not require elaborate argument to establish
  • Review is not a jurisdiction for rehearing a matter afresh in the hope of a more favourable outcome

Court orders

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  1. 1.The application dated 15 March 2017 for review is dismissed with costs
  2. 2.The orders issued on 22 February 2017 to remain in force until the case is heard and determined

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 45 Rule 2
  • Civil Procedure RulesOrder 45 Rule 5

Cases cited (2)

  • Abasi Balinda vs Frederick Kangwamu and Another
    (1963) EA 557
  • National Bank of Kenya vs Ndungu Njau
    (1996) KLR 469
Jurisdiction invoked
Order 45 Rules 1, 2 and 5 of the Civil Procedure Rules (application for review)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Loyce Jerop Chelagat v Herman Marine Nderi & 8 others [2017] KEELC 1611 (KLR)", Case Analysis (2017). Not stated in the excerpt (plaint filed 31 May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1611/eng@2017-09-21

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