Peter Waititu Njau v Biashara Sacco Society [2018] KEELC 341 (KLR)
The bottom line
#A Nyeri land court refused to review its earlier eviction-related ruling, confirming that unhappy litigants should appeal rather than seek review.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant satisfied the conditions for review under Order 45 Rule 1 of the CPR
The applicant failed to satisfy any of the grounds for review; the grounds raised were appealable issues and the alleged new matter was attributable to the applicant's own failure of diligence
The court held that most of the grounds urged, such as alleged misdirection in failing to grant equitable relief or determining the suit without a hearing, can only be raised on appeal and not in a review. The only ground arguably within Order 45 was the existence of BPRT injunctive orders, but the applicant never brought those orders to the court's attention in either proceedings. Since a court order's existence cannot be presumed, non-disclosure by the party seeking to benefit from it cannot amount to discovery of new and important matter after due diligence.
Whether there was any mistake or error apparent on the face of the record, or any other sufficient reason, warranting review
No; complaints about the court's conclusions on issues are erroneous views of law or evidence reviewable only on appeal
Relying on Abasi Belinda v Frederick Kangwamu and Chittaley & Rao, the court distinguished review from appeal: an erroneous view of evidence or law, or disagreement with the court's conclusions, is no ground for review. The applicant's complaints that the court misapprehended the prayers and determined the main suit on its merits were classified as grounds of appeal. No other sufficient reason for review was identified.
Legal principles established
#- The existence of a court order cannot be presumed; it must be brought to the attention of the court by the person who seeks to benefit from it
- An erroneous view of evidence or law is a ground of appeal, not a ground for review
- Failure by a party to disclose existing orders, despite due diligence being required, does not constitute discovery of new and important matter for review
Court orders
#- 1.The application dated 31st July, 2018 is dismissed
- 2.Costs of the application to the respondent
- Jurisdiction invoked
- Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Waititu Njau v Biashara Sacco Society [2018] KEELC 341 (KLR)", Case Analysis (2018). Application dated 31st July, 2018 in Nyeri ELC Suit (application dated 31st August, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/341/eng@2018-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.