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ELCDismissedNotice of Motion dated 15th January 2018 (arising from Nyahururu PMCC No. 213 of 2004 and appeal judgment of 13th December 2017)· [2018] KEELC 1332 (KLR)

Naomi Waithera Wanyoike v Huri Kamau [2018] KEELC 1332 (KLR)

Environment and Land Court
11 October 2018
MOM.C. Oundo
2,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to review its own judgment, confirming that disagreements with a judge's legal or evidentiary findings belong in an appeal, not a review application.

What this practically means

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Executive summary

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The Applicant, Naomi Waithera Wanyoike, moved the Environment and Land Court at Nyahururu by Notice of Motion dated 15th January 2018 under Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, seeking review of the court's judgment of 13th December 2017 delivered in an appeal. She contended that paragraph 64 of the judgment contained an error apparent on the face of the record: the judgment described the Respondent's late father as the registered proprietor of Plot No. Nyandarua/Kaimbaga/182, whereas the registered proprietor was the Applicant upon transmission as legal representative of her late husband, and the Respondent had been sued in his individual capacity as a trespasser, not as a legal representative of his father's estate. The Respondent opposed, arguing the court was functus officio, the application offended res judicata, raised grounds of appeal rather than review, and did not meet the Order 45 Rule 1 threshold. The Respondent relied on Abdullah Mohamud v Mohammud Kahiye and National Bank of Kenya Ltd v Ndungu Njau. The court framed the sole issue as whether the applicant had satisfied the grounds for review. Relying on Ajit Kumar Rath v State of Orisa, National Bank of Kenya Ltd v Ndungu Njau, Francis Origo v Jacob Kumali Mungala and Abasi Belinda v Frederick Kangwamu, the court held that an erroneous view of law or evidence is a ground for appeal, not review, and that entertaining the application would amount to the court sitting on appeal over its own judgment. The application was dismissed with costs to the Respondent on 11th October 2018.

Key legal issues

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Whether the applicant satisfied the grounds for review under Order 45 Rule 1 and Section 80 of the Civil Procedure Act

Holding

Application dismissed; the alleged mistake was in substance a challenge to the court's findings and did not fall within the enumerated grounds of review

Reasoning

The court set out the three grounds for review - new and important matter, error apparent on the face of the record, and other sufficient reason - and found that the applicant's complaint that the judgment was based on a mistaken belief about the capacity in which the respondent was sued did not fall within any of them. Such grounds qualify as grounds of appeal; allowing review would amount to the court sitting on appeal over its own decision.

p. 3

Legal principles established

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  • An erroneous conclusion of law or evidence is a ground for appeal, not review
  • The proper way to correct an alleged misapprehension of law or wrongful exercise of discretion is to appeal, unless the error is apparent on the face of the record

Court orders

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  1. 1.Dismissal of the application dated 15th January 2018
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3

Cases cited (7)

  • Meshak Salwa vs Alfayo Wetende and another
    [2009] eKLR
  • JMK vs. MWM and MFS
    [2015] eKLR
  • Adbullah Mohamud vs. Mohammud Kahiye
    [2015] eKLR
  • National Bank of Kenya Ltd vs. Ndungu Njau
    [1997] eKLR / [1996] KLR 469
  • Ajit Kumar Rath vs State of Orisa & Others
    2 November 1999, Page 608
  • Francis Origo & another v. Jacob Kumali Mungala
    [2005] eKLR
  • Abasi Belinda v. Frederick Kangwamu and another
    [1963] E.A. 557
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 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, "Naomi Waithera Wanyoike v Huri Kamau [2018] KEELC 1332 (KLR)", Case Analysis (2018). Notice of Motion dated 15th January 2018 (arising from Nyahururu PMCC No. 213 of 2004 and appeal judgment of 13th December 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1332/eng@2018-10-11

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