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ELCDismissedOriginating Summons filed 30th September 2014 (Bungoma High Court)· [2018] KEELC 1210 (KLR)

Simiti v Kasambula & another; Wangolo (Applicant) (Environment & Land Case 177 of 2014) [2018] KEELC 1210 (KLR)

High Court of Kenya
18 October 2018
3,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling by Olao J of the Bungoma High Court dated 18th October 2018 on a Notice of Motion dated 26th February 2018 by Robert Sundwa Wangolo, the interested party and registered proprietor of parcel No. Ndivisi/Khalumuli/4201. The underlying suit was an Originating Summons by the plaintiff (substituted for the deceased Christopher Wanga Simiti) claiming 3.7076 Ha of parcel Ndivisi/Khalumuli/1326 by adverse possession, in which the late Mukunya J gave judgment on 10th March 2017 ordering the land sub-divided with 7½ acres to the plaintiff and 1½ acres to the defendants. During the pendency of the suit, the defendants secretly sub-divided the suit land into new parcels, including 4201 transferred to the Applicant, prompting a ruling on 22nd February 2018 cancelling the new titles and reverting the land to the original title. The Applicant, who acquired his title through a succession process, sought setting aside and review of the 2017 judgment, alleging he was condemned unheard. Prayers (a), (b) and (c) were spent. Olao J held that the 2017 judgment was a final judgment on the merits which, following Kenya Power & Lighting Co Ltd v Benzene Holdings, cannot be set aside, only reviewed or appealed. On review, the Applicant disclosed no error apparent on the record, no new and important matter, and was guilty of inordinate, unexplained delay of almost a year. Further, he had acted with the defendants in transferring parcel 4201 during the pendency of the suit, conduct found by Mukunya J to amount to contempt of court orders and abuse of court process. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether a final judgment on the merits can be set aside by the trial court

Holding

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.

Reasoning

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.

p. 4
02

Whether the grounds for review under Section 80 CPA and Order 45 Rule 1(1) were established

Holding

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.

Reasoning

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.

p. 6
03

Whether the court's discretionary review power should favour a party found to have abused court process

Holding

No. The court expressed its displeasure with the Applicant's conduct by dismissing the application.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Prayer (d) for setting aside and/or review of the judgment dated 10th March 2017 and consequential orders dismissed
  3. 3.The Applicant's Notice of Motion dated 26th February 2018 dismissed
  4. 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

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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, "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.