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ELCDismissedNotice of Motion dated 4th September 2017 (arising from ELRC Judicial Review Application; related Appeal No. 125 of 2013)· [2018] KEELC 2750 (KLR)

Republic v Kirinyaga County Council & another Ex-parte Stephen Muriithi Njeru & another [2018] KEELC 2750 (KLR)

Environment and Land Court
26 June 2018
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan land court dismissed a bid to review its judgment because the applicants waited over four months and showed no valid legal reason for review.

What this practically means

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Executive summary

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The Applicants, Stephen Muriithi Njeru and James Kamaru Mathenge, moved the Environment and Land Court by Notice of Motion dated 4th September 2017 under Order 45 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking review of the judgment and decree delivered on 5th May 2017 by which the court dismissed their Judicial Review Application on, among other grounds, the existence of pending Appeal No. 125 of 2013. They also asked the court to dismiss that appeal, claiming they had never been served. The 1st Respondent filed grounds of objection, noting that the order sought to be reviewed had not been annexed and that the appeal had not been admitted since the lower court record had not been forwarded. The 2nd Respondent did not respond. B.N. Olao J held, following the Court of Appeal in Peter Githaiga v Betty Rashid, that failure to annex the decree or order was not fatal. However, the application was filed about four months and three weeks after judgment, a delay the court found unexplained and unreasonable, citing its own decision in Eman Kamunya Kithaka, Onyango-Otieno J's decision in Kenfreigh E.A Ltd, and the Court of Appeal's decision in Francis Origo. Independently, the Applicants failed to demonstrate discovery of new and important matter, error apparent on the face of the record, or other sufficient reason; a review court cannot dismiss a pending appeal, and a party merely aggrieved should appeal. The Notice of Motion was dismissed with costs to the 1st Respondent. The ruling was signed at Bungoma on 7th May 2018 and delivered at Kerugoya on 26th June 2018 by S.N. Mukunya J.

Key legal issues

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01

Whether failure to annex the decree or order sought to be reviewed is fatal

Holding

Not fatal where the judgment is on the court file and the respondent is not prejudiced

Reasoning

Although the High Court has in several cases held that failure to annex the decree or order is fatal to a review application, the Court of Appeal in Peter Githaiga v Betty Rashid held that Order 45(1) does not expressly require annexure; where the applicant can direct the court to the part of the judgment complained of, the application is not fatally defective. The judgment was on the file and counsel annexed it to submissions, and the 1st Respondent knew the case it had to meet.

p. 2
02

Whether the application was filed without unreasonable delay

Holding

The delay of about four months and three weeks was unreasonable and warranted dismissal

Reasoning

The judgment sought to be reviewed was delivered on 5th May 2017 and the application filed on 27th September 2017, a delay of four months and three weeks. Relying on the court's own prior decision in Eman Kamunya Kithaka and Onyango-Otieno J's decision in Kenfreigh E.A Ltd (three months unreasonable), and the Court of Appeal's decision in Francis Origo, the court found the delay unexplained and unreasonable, which alone justified dismissal.

p. 3
03

Whether the grounds for review in Order 45 Rule 1(1) were established

Holding

No new and important matter, error apparent on the face of the record, or other sufficient reason was demonstrated

Reasoning

The Applicants only expressed grievance at the judgment and sought dismissal of a pending appeal, which a review court cannot order. Nothing in the application or supporting affidavit showed discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason under Order 45 Rule 1(1). The proper remedy for a party aggrieved by the judgment is an appeal.

p. 3

Legal principles established

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  • Failure to annex the formal order or decree sought to be reviewed is not fatal to an application for review, following Peter Githaiga v Betty Rashid
  • An application for review must be filed without unreasonable delay; an unexplained delay of about four months is unreasonable
  • A party merely aggrieved by a judgment should appeal rather than seek review where no ground for review exists

Court orders

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  1. 1.The Notice of Motion dated 4th September 2017 is dismissed
  2. 2.Costs of the application awarded to the 1st Respondent
Jurisdiction invoked
Order 45 Rule 1(1) and (2) of the Civil Procedure Rules and Section 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, "Republic v Kirinyaga County Council & another Ex-parte Stephen Muriithi Njeru & another [2018] KEELC 2750 (KLR)", Case Analysis (2018). Notice of Motion dated 4th September 2017 (arising from ELRC Judicial Review Application; related Appeal No. 125 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2750/eng@2018-06-26

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