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ELCDismissedNot stated in the judgment· [2018] KEELC 3922 (KLR)

Achal Sukhbinder Singh & 2 others v Chandrakant Gor & another [2018] KEELC 3922 (KLR)

High Court of Kenya
8 March 2018
1,866 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 threw out a request to reopen a 2006 land judgment because it came nine years late with no new evidence or legal mistake shown.

What this practically means

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Executive summary

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This ruling by Okong'o J. determined the defendants' Notice of Motion dated 7th December, 2015 seeking review of the judgment of Kasango J. delivered on 30th October, 2006 and the decree issued pursuant to it, in a suit filed on 10th January, 2003 in which the plaintiffs had obtained an order for specific performance requiring the defendants to transfer a one-fourth undivided share of subdivision A of L.R No. 209/4877/2. The defendants argued that a ruling of 31st October, 2013 in High Court Misc. Criminal Application No. 160 of 2009 established that the subdivision of the suit property could not be carried out in accordance with the decree, that the plaintiffs' purported subdivision was fraudulent and illegal, and sought a variation so that transfer be effected by way of sublease for the unexpired term. The plaintiffs opposed through grounds of opposition, contending the application was misconceived, an abuse of process, and overtaken by events since the decree had been executed and the suit property subdivided. The court, applying section 80 of the Civil Procedure Act and Order 45 rule 1(1) of the Civil Procedure Rules and the principles in the cited Court of Appeal authorities, held that no valid ground of review was established: the application was generalized, the 2013 ruling post-dated the judgment and could not be new matter, no error appeared on the face of the record, the ruling relied on was not made in this suit, and there was no evidence of fraud or illegality. The application also failed for inordinate, unexplained delay of nine years. The application was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether the review application satisfied the grounds in Order 45 rule 1(1) of the Civil Procedure Rules

Holding

The application failed; no new matter, no error apparent on the face of the record, and no sufficient reason was established

Reasoning

The court applied section 80 of the Civil Procedure Act and Order 45 rule 1(1), as explained in the cited authorities. The application was generalized and did not identify which ground of review it invoked. The ruling of 31st October, 2013 in Misc. Criminal Application No. 160 of 2009 was delivered seven years after the judgment under review and so could not be new matter. No apparent error or mistake on the face of the judgment was demonstrated.

p. 2
02

Whether alleged impossibility of executing the decree and alleged fraud by the plaintiffs amounted to sufficient reason for review

Holding

They did not; the ruling relied on was not made in this suit and there was no evidence of fraud or illegality in the subdivision

Reasoning

The court noted that the decree was made in favour of the plaintiffs, who were not complaining and contended it had been executed. The ruling of 31st October, 2013 relied on by the defendants was not issued in this suit and did not relate to it. No evidence was placed before the court showing that the alleged subdivision of the suit property carried out by the plaintiffs was illegal or fraudulent.

p. 3
03

Whether the delay of nine years in bringing the application defeated the review

Holding

The application was brought after inordinate and unexplained delay and failed on that account as well

Reasoning

The judgment sought to be reviewed was delivered on 30th October, 2006 and the application was filed on 7th December, 2015, approximately nine years later. The authorities cited required that an application for review be made without unreasonable delay. No explanation for the delay was offered by the defendants.

p. 3

Legal principles established

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  • An applicant for review must place the application clearly within the grounds set out in Order 45 of the Civil Procedure Rules and demonstrate discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, without unreasonable delay
  • A decision rendered after the judgment sought to be reviewed cannot constitute new and important matter or evidence that could not have been placed before the court when the judgment was made
  • Inordinate and unexplained delay is an independent ground for refusing an application for review

Court orders

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  1. 1.The defendant's Notice of Motion application dated 7th December, 2015 seeking review of the judgment of 30th October, 2006 and the decree issued pursuant thereto was dismissed
  2. 2.Costs of the application awarded to the plaintiffs

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 45 rule 1(1)

Cases cited (4)

  • Francis Origo & another vs. Jacob Kumali Mungala
    Eldoret CA No. 149 of 2001
  • Kenya Power & Lighting Company Limited vs. Benzene Holdings Limited t/a Wyco Paints
    Nairobi CA 132 of 2014
  • John Kamau Ruhangi vs. Kenya Reinsurance Corporation
    Civil Appeal No. 208 of 2006
  • Rose Kaiza vs. Angelo Mpanju Kaiza
    (2009) eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1(1) of the Civil Procedure Rules (review jurisdiction)

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, "Achal Sukhbinder Singh & 2 others v Chandrakant Gor & another [2018] KEELC 3922 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3922/eng@2018-03-08

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