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ELCDismissedNot stated in the judgment (Notice of Motion dated 27th January 2016)· [2017] KEELC 1973 (KLR)

Borop Multipurpose Co-operative Society Ltd v Sonoiya Arap Simsim & 3 Others [2017] KEELC 1973 (KLR)

Environment and Land Court of Kenya
31 July 2017
1,229 words in judgment
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (D. O. Ohungo, J) determined the plaintiff's Notice of Motion dated 27th January 2016 brought under Order 45 rules 1(1)(a) and (b) and 3(1) and (2) of the Civil Procedure Rules, seeking review of the judgment and decree delivered by Hon. L. N. Waithaka, Judge, on 14th November 2014, setting aside of that judgment, and reinstatement of the plaintiff's suit for re-hearing before another judge. The plaintiff argued that there was an error apparent on the face of the record because the learned judge failed to consider the alleged breach of the plaintiff's by-laws, and attributed the delay in prosecuting the application to difficulties in retrieving the court file, adding that the notice of appeal filed on 27th November 2014 had been withdrawn entirely. The defendants opposed, contending the application sought to deny them the fruits of the judgment, that the applicant was guilty of laches, and that the alleged error required a long drawn process of reasoning and interrogation of evidence and could not ground a review. The court held that the contents of the by-laws and the nature of the alleged breach were matters of evidence, and re-examining them would amount to sitting on appeal from the learned judge's decision; an erroneous conclusion of law or evidence is a ground for appeal, not review. The court further found the applicant guilty of unreasonable delay, the application having been filed some 14 months after judgment, and held that review was unavailable because a notice of appeal was on record when the application was filed, contrary to Order 45 rule 1(1)(a). The application was dismissed with costs to the defendants.

Key legal issues

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01

Whether the alleged failure to consider the plaintiff's by-laws constitutes an error apparent on the face of the record

Holding

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

Reasoning

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.

p. 2
02

Whether the application was filed without unreasonable delay

Holding

No - the application was filed some 14 months after judgment with no reason offered, and the applicant was guilty of unreasonable delay

Reasoning

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.

p. 3
03

Whether the existence of a notice of appeal barred the review application

Holding

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)

Reasoning

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.

p. 3

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
  • 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

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  1. 1.The Notice of Motion dated 27th January 2016 is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 rule 1(1)(a) and (b)
  • Civil Procedure RulesOrder 45 rule 3(1) and (2)
  • Civil Procedure RulesOrder 45 rules 1 and 2

Cases cited (2)

  • Jameny Mudaki Asava v Brown Otengo Asava & another
    [2015] eKLR
  • Origo & Another vs Mungala
    [2005] 2 KLR 307
Jurisdiction invoked
Order 45 rule 1(1)(a) and (b) and rule 3(1) and (2) of the Civil Procedure Rules

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, "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.