Ngugi Ticha v Kiritu Ticha & 2 others [2017] KEELC 2376 (KLR)
The bottom line
#Kenya's High Court dismissed a land review application filed 14 years late, confirming that review cannot be used to relitigate errors that should be raised on appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant met the threshold for review under Order 45 of the Civil Procedure Rules
The applicant failed to establish any of the grounds for review - no discovery of new matter, no error apparent on the face of the record, and no other sufficient reason - and the application was an abuse of process due to 14 years' unexplained delay.
The court set out the three grounds for review under Order 45: discovery of new and important matter not known despite due diligence, mistake or error apparent on the face of the record, and any other sufficient reason. The alleged fact that the other houses had benefited from 100x100ft plots was known to the applicant's mother, so it was not a discovery. The complaint that the trial judge and Court of Appeal misapprehended evidence is a ground of appeal, not review. The 14-year delay, after the matter had gone through appeal and part execution, meant litigation had to come to an end.
Whether alleged erroneous findings or misapprehension of evidence justify review
No - such complaints are grounds for appeal, not review, and this court was not sitting on appeal.
Relying on T. Swai v Kenya Breweries Ltd, the court held that allowing review on grounds of alleged error of law or misapprehension of evidence would set a dangerous precedent, exposing decisions of courts that are functus officio to attacks under the guise of review when the power to review decisions on appeal is vested in appellate courts.
Legal principles established
#- An erroneous finding or misapprehension of evidence by a judge is a ground for appeal, not a ground for review.
- Courts that are functus officio cannot entertain attacks on their decisions under the guise of review; review on grounds of alleged error of law is impermissible as that power rests with appellate courts.
- An application for review must be made without unreasonable delay, and unexplained inordinate delay constitutes an abuse of the process of the court.
Court orders
#- 1.The applicant's notice of motion dated 27th May 2016 seeking review is dismissed
- 2.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngugi Ticha v Kiritu Ticha & 2 others [2017] KEELC 2376 (KLR)", Case Analysis (2017). Nairobi High Court Civil Case No. 1408 of 1976. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2376/eng@2017-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.