Simiti v Kasambula & another; Wangolo (Applicant) (Environment & Land Case 177 of 2014) [2018] KEELC 1210 (KLR)
The bottom line
#Kenya's High Court ruled that a final judgment after a full hearing cannot be undone except through review or appeal, and delayed, bad-faith applicants get no help.
What this practically means
#Executive summary
#Key legal issues
#Whether a final judgment on the merits can be set aside by the trial court
No. Only default judgments (under Orders 10, 12 and 36) are amenable to setting aside; a final judgment can only be revisited by way of review under Order 45 or appeal.
The court found the 10th March 2017 judgment was delivered after all parties had been heard on the merits. Following Kenya Power & Lighting Co Ltd v Benzene Holdings, it held that the Civil Procedure Rules contain no provision for setting aside a final judgment; a party aggrieved must seek review under Order 45 or lodge an appeal under Order 42. The setting aside remedy was therefore unavailable.
Whether the grounds for review under Section 80 CPA and Order 45 Rule 1(1) were established
No. No error apparent on the face of the record, no new and important matter, no other sufficient reason, and the application was made after inordinate unexplained delay.
The Applicant was not a party when the 2017 judgment was delivered, so no error arose from his not being heard. He acquired parcel 4201 during the pendency of the suit in circumstances Mukunya J found to be contempt of court orders and an abuse of process. The application was filed almost a year after judgment, delay that was unexplained and unreasonable, disentitling him to review.
Whether the court's discretionary review power should favour a party found to have abused court process
No. The court expressed its displeasure with the Applicant's conduct by dismissing the application.
Order 45 Rule 1(1) confers a discretionary power that must be exercised judicially and for sound reasons. The Applicant, acting with the defendants, transferred parcel 4201 to himself during the pendency of the suit contrary to orders, and had been found in contempt of court orders and abusive of the process of the court; such conduct did not deserve the exercise of the discretion in his favour.
Legal principles established
#- A final judgment arrived at after hearing parties on the merits cannot be set aside; it can only be reviewed under Order 45 or challenged on appeal.
- An application for review must be made without unreasonable delay, and unexplained delay disentitles the applicant to the remedy.
- The discretionary power of review under Order 45 Rule 1(1) must be exercised judicially and for sound reasons, and may be denied to a party who has abused the court process or been in contempt of court orders.
Court orders
#- 1.Prayers (a), (b) and (c) of the Notice of Motion dated 26th February 2018 declared spent (prayer (a) already granted by Mukunya J on 26th February 2018; prayers (b) and (c) declined by the late Mukunya J)
- 2.Prayer (d) for setting aside and/or review of the judgment dated 10th March 2017 and consequential orders dismissed
- 3.The Applicant's Notice of Motion dated 26th February 2018 dismissed
- 4.Costs of the application to the plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over land matters; application brought under Order 40 rules 1, 2, 3 and Order 45 rules 1, 2 of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simiti v Kasambula & another; Wangolo (Applicant) (Environment & Land Case 177 of 2014) [2018] KEELC 1210 (KLR)", Case Analysis (2018). Originating Summons filed 30th September 2014 (Bungoma High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1210/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.