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ELCDismissedNot stated in judgment· [2017] KEELC 3250 (KLR)

Eman Kamunya Kithaka v Peter Kinyua Kamunya [2017] KEELC 3250 (KLR)

Environment and Land Court
3 March 2017
2,215 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a bid to overturn a land judgment, confirming that disagreement with a ruling means you appeal, not seek review.

What this practically means

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Executive summary

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The plaintiff sued seeking cancellation of the defendant's registration of land parcel KIRINYAGA/GATHIGIRIRI/698, alleging fraudulent transfer by forgery of his signature or thumb print. Judgment was delivered on 26th February 2016 in the plaintiff's favour. The defendant, acting in person at the hearing, instructed G.O. Ombachi Advocate and filed a Notice of Motion dated 6th June 2016 under Order 45 Rule 1 seeking review and setting aside of that judgment, continued occupation of the portion on which he had built a house, and issuance of a title for that portion. The plaintiff opposed, contending there was no error apparent on the face of the record and no ground for review. The court first held that Order 9 Rule 9 leave was unnecessary since the defendant was unrepresented at trial. On the merits, the court found the applicant's real complaint was an alleged error of law in the finding on fraud, which per National Bank of Kenya Ltd v Ndungu Njau is a ground of appeal, not review. The court had recognised the defendant's permission to build but found the gift allegation unproven and, given the fraud claim on agricultural land, the defendant should have produced Land Control Board minutes. The application was also filed four months after judgment without explanation, which the court held was unreasonable delay. The request for occupation and title failed because the defendant was a mere licensee, and compelling the plaintiff to transfer land would infringe his Article 40 property rights; such relief required a counter-claim. The application was dismissed with each party bearing their own costs as they are family.

Key legal issues

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01

Whether error of law can ground review

Holding

No - an error of law or misconstruction of statute is a ground of appeal, not review

Reasoning

The applicant's real complaint was that the court erred in finding fraud proved. Following National Bank of Kenya Ltd v Ndungu Njau, the Court of Appeal has held that an erroneous conclusion of law or misconstruing a statute is not a sufficient ground for review; the proper avenue is an appeal.

p. 3
02

Whether the four-month delay was unreasonable

Holding

Yes - the application for review was time-barred by unreasonable, unexplained delay

Reasoning

Judgment was delivered on 26th February 2016 and the application filed on 6th June 2016. The applicant was present when judgment was delivered and gave no explanation for the delay. The Land Registrar had already complied and issued a title to the plaintiff. Citing Kenfreight and Hassan v National Bank, three-month delays have been held unreasonable.

p. 4
03

Whether the applicant was entitled to a title for the portion occupied

Holding

No - occupation under permission made him only a licensee whose licence could be terminated

Reasoning

It was conceded the plaintiff allowed the applicant to build a home, but that conferred only a licence terminable at any time. The court cannot compel the plaintiff to extend it or transfer the land; doing so would infringe his Article 40 right to property. Such relief required a counter-claim.

p. 4
04

Whether Order 9 Rule 9 leave was required

Holding

No - the applicant was acting in person when the case was heard and judgment delivered, so the rule does not apply

Reasoning

Order 9 Rule 9 targets a change of advocate or election to act in person after previously engaging an advocate. The defendant was never represented when the case was heard; the mischief of the rule is notifying the previous advocate of a change so fees and addresses are sorted, which does not arise here.

p. 2

Legal principles established

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  • An erroneous conclusion of law or misconstruction of a statute is not a ground for review but for appeal
  • An application for review must be filed without unreasonable delay; unexplained delay of three to four months is unreasonable

Court orders

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  1. 1.The Notice of Motion dated 6th June 2016 is dismissed
  2. 2.Each party to meet their own costs
Jurisdiction invoked
Order 45 Rule 1 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, "Eman Kamunya Kithaka v Peter Kinyua Kamunya [2017] KEELC 3250 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3250/eng@2017-03-03

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