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ELCDismissedNot stated in judgment (Motion dated 21st January, 2015 in the principal suit)· [2017] KEELC 3665 (KLR)

Kawangware Green Harambee Group v Kiparen Ole Kuraru & 2 others [2017] KEELC 3665 (KLR)

Environment and Land Court
27 January 2017
OAO. A. Angote
1,354 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a request to review its earlier ruling because the alleged error would not have changed the outcome, showing review is a narrow remedy.

What this practically means

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Executive summary

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This was a first-instance ruling of the Environment and Land Court at Machakos on a Notice of Motion dated 21st January, 2015 seeking review of the court's injunctive orders of 16th January, 2015 issued on the Plaintiff's Motion dated 6th November, 2014. The Applicant invoked Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, contending that the court had ignored the Defendant's Defence and counterclaim on record, amounting to an error apparent on the face of the record, and that serious allegations of fraud and breach of contract concerning ownership of the suit land had not been factored into the Ruling. The Respondent opposed, arguing the application was incompetent (affidavit commissioning, change of advocate, failure to annex the extracted order) and that on the merits no new and important matter existed since the issues in the Defence were replicated in the Replying Affidavit which the court had considered. The court framed two issues: competency and whether the Order 45 threshold was met. All technical objections were rejected, the court holding that annexing the Ruling sufficed under Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act. On the merits, the court found that although the Defence was not considered in the impugned Ruling, the Defence would not have changed the result because the Replying Affidavit replicated its contents, and the Defendants would suffer no prejudice as the suit property would remain intact. The application was dismissed with costs.

Key legal issues

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01

Competency of the application (commissioning of affidavit, change of advocate, annexure of order)

Holding

All three technical objections were rejected: the affidavit was commissioned, a notice of change of advocate was on record, and annexing the Ruling rather than the extracted order suffices.

Reasoning

The court addressed the technical objections first. The affidavit was duly commissioned by Evans Moronge and a notice of change of advocate was filed on 19th January, 2015. As to the order, the impugned Ruling was attached as KO2 and its orders were explicit and not misleading. Guided by Schedule 6 Rule 7(1) of the Constitution, Article 159(2)(d) and Sections 1A and 1B of the Civil Procedure Act, the court held the omission caused no prejudice.

p. 3
02

Whether an error apparent on the face of the record existed warranting review

Holding

Although the Ruling failed to consider the Defence and counterclaim, this was not an error that would have changed the result since the Replying Affidavit replicated the Defence contents.

Reasoning

The Ruling had noted there was no defence on record, yet a Defence and counterclaim filed on 17th December, 2014 apparently existed but may have been outside the court file due to registry logistics. However, the Respondent's Replying Affidavit raised virtually all the issues in the Defence, including fraud and ownership allegations, and were considered by the court. No new and important matter was unearthed, and the Defendants would suffer no prejudice from the injunctive orders facilitating boundary fixing and beacon placement.

p. 3

Legal principles established

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  • A review may be granted where the court considers it necessary to correct an apparent error or omission; the error must be self-evident and not require elaborate argument.
  • On an application for review, annexing the Ruling suffices and failure to annex the extracted order is not fatal given the overriding objective to do justice without procedural technicalities.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 21st January, 2015
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45
  • Civil Procedure ActSections 1A and 1B
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Sixth Schedule, Rule 7(1)

Cases cited (8)

  • Draft and Develop Engineers Ltd vs National Water Conservation and Pipeline Corporation
    HCCC 11/2011
  • Muyodi vs Industrial & Commercial Development Corporation & another
    (2006) 1 EA 243
  • Michael Mungai vs Ford Kenya Elections & others
    (2013) eKLR
  • Barclays Bank Ltd vs Elizabeth Agidza & 2 others
  • Nancy Wanjeri & 5 others vs Michael Muigai
    (2014) eKLR
  • National Bank of Kenya Ltd vs Njau
    (1996) LLR 469 (CAK)
  • C.M.C Motors Group Ltd vs Marben School & another
    (2013) eKLR
  • MEA Ltd vs Gititu Coffee Growers Co-operative Society
    (2006) eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)

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, "Kawangware Green Harambee Group v Kiparen Ole Kuraru & 2 others [2017] KEELC 3665 (KLR)", Case Analysis (2017). Not stated in judgment (Motion dated 21st January, 2015 in the principal suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3665/eng@2017-01-27

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