Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2018] KEELC 3884 (KLR)

Hellen Cherono W/O Joel Kimutai Keino v John Kipkemoi Mutai & 4 others [2018] KEELC 3884 (KLR)

Environment and Land Court
6 April 2018
JOJ. M. ONYANGO
1,456 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kericho court dismissed a landowner's bid to revive her suit, confirming that missed deadlines require an appeal, not a review.

What this practically means

#

Executive summary

#
The plaintiff moved the Environment and Land Court at Kericho by a Notice of Motion dated 13th July 2017 seeking extension of interim stay of execution orders issued on 30th June 2017 and, principally, review of the ruling delivered on 30th June 2017 which had found that her suit was non-existent or stood dismissed. She contended that she had complied with the ruling of 25th November 2016 by paying Kshs. 15,000, and blamed the defendants' advocate for failing to forward the auctioneers' bill for taxation or agreement, arguing that since the auctioneers' costs were neither agreed nor taxed, her suit still subsisted. The 1st and 2nd defendants opposed, asserting that the payment was made outside the prescribed 14-day period, that no error apparent on the face of the record or new evidence justified review, and that combining a review prayer with extension of time was fatally defective. The court framed two issues: whether a case for review was made out, and whether the court was functus officio. Relying on Origo & Another v Mungala, the court held that an erroneous conclusion of law is a ground for appeal, not review, since the condition for reinstatement - payment of thrown away costs and auctioneers' fees within 14 days - had not been met. Concluding the suit stood dismissed, the court held itself functus officio, barred from merit-based re-engagement, and dismissed the application with no order as to costs.

Key legal issues

#
01

Whether the ruling of 30th June 2017 should be reviewed

Holding

Review was not warranted; the plaintiff's complaint is about the court's interpretation of the 25.11.2016 ruling, which is a ground for appeal, not review.

Reasoning

The court found that time was running against the plaintiff, who was obliged to contact the auctioneer and pay the thrown away costs and auctioneers' fees within 14 days as a condition of reinstatement. Failure to comply meant the suit stood dismissed. Any disagreement with that interpretation could only be pursued on appeal, as review lies only for error apparent on the face of the record or new evidence, neither of which was demonstrated.

p. 2
02

Whether the court is functus officio

Holding

Yes; having concluded that the suit stands dismissed, the court cannot re-engage with the merits of the matter.

Reasoning

The court restated the functus officio doctrine as an expression of the principle of finality: once a decision has been given and perfected, the decision maker cannot review or vary it, save for correcting clerical errors. Since the suit stood dismissed for non-compliance, the court had performed all its duties and could not entertain the review sought.

p. 2

Legal principles established

#
  • An erroneous conclusion of law or evidence is a ground for appeal, not review.
  • The functus officio doctrine bars merit-based re-engagement with a case once final judgment has been entered and a decree issued.

Court orders

#
  1. 1.The plaintiff's application dated 13th July 2017 is dismissed with no order as to costs.

Authorities

#

Legislation

  • Environment and Land Court Actsection 19(2)
  • Civil Procedure RulesOrder 45

Cases cited (2)

  • Origo & Another V Mungala
    (2005) 2 KLR
  • Jameny Mudaki Asava V Brown Otengo Asava & Another
    (2015) eKLR
Jurisdiction invoked
Section 19(2) of the Environment and Land Court Act (invoked by the plaintiff's counsel)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hellen Cherono W/O Joel Kimutai Keino v John Kipkemoi Mutai & 4 others [2018] KEELC 3884 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3884/eng@2018-04-13

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