Borop Multipurpose Co-operative Society Ltd v Sonoiya Arap Simsim & 3 Others [2017] KEELC 1973 (KLR)
The bottom line
#A Kenyan court dismissed a bid to revisit a land judgment, confirming that disagreements with a judge's evidence findings belong in an appeal, not a review.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged failure to consider the plaintiff's by-laws constitutes an error apparent on the face of the record
No - the contents of the by-laws and the alleged breach are matters of evidence, and re-examining them would amount to sitting on appeal from the learned judge's decision
The court reasoned that the alleged error relates to evidence and the weighing of submissions. Review under Order 45 cannot be used as a substitute for appeal; an erroneous conclusion of law or evidence is a ground for appeal, not review. The applicant, having chosen review, was proceeding in the wrong direction.
Whether the application was filed without unreasonable delay
No - the application was filed some 14 months after judgment with no reason offered, and the applicant was guilty of unreasonable delay
Judgment was delivered on 14th November 2014 and the review application was filed on 28th January 2016, about 14 months later. Order 45 rule 1(1)(b) requires an application for review to be made without unreasonable delay. The court found no sufficient reason for the delay.
Whether the existence of a notice of appeal barred the review application
Yes - the notice of appeal filed on 27th November 2014 was on record when the application was filed, so review was unavailable under Order 45 rule 1(1)(a)
The applicant filed a notice of appeal on 27th November 2014, which remained on record when the review application was filed, and was only withdrawn on 25th May 2017 while the application was pending. Since Order 45 rule 1(1)(a) bars review where an appeal has been preferred, the remedy of review was not available to the applicant.
Legal principles established
#- An erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal
- A court hearing a review application cannot re-evaluate evidence and reach a different conclusion from the judge who decided the case, as that would amount to sitting on appeal
- Review under Order 45 is unavailable to a party who has preferred an appeal against the decree sought to be reviewed
Court orders
#- 1.The Notice of Motion dated 27th January 2016 is dismissed with costs to the defendants
- Jurisdiction invoked
- Order 45 rule 1(1)(a) and (b) and rule 3(1) and (2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Borop Multipurpose Co-operative Society Ltd v Sonoiya Arap Simsim & 3 Others [2017] KEELC 1973 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 27th January 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1973/eng@2017-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.