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ELCDismissedApplication dated 2nd February 2017 (suit particulars not stated in the ruling)· [2018] KEELC 3939 (KLR)

Executive Committee Chelimo Plot Owners Welfare Group & 288 others v Langat Joel & 4 others (sued as the Management Committee of Chelimo Squatters Group) [2018] KEELC 3939 (KLR)

Environment and Land Court
13 March 2018
JOJ. M. Onyango
1,799 words in judgment
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The bottom line

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The Environment and Land Court in Kericho dismissed a review application because the plaintiffs attached no formal order and raised no new grounds.

What this practically means

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Executive summary

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This ruling by J.M. Onyango, Judge, delivered at Kericho on 13th March 2018, determines the plaintiffs' Notice of Motion dated 2nd February 2017 seeking review and setting aside of the order issued on 25th November 2016 striking out the Amended Plaint. The earlier order was made on a defendants' application on the ground that no written authority of the plaintiffs had been filed as required by Order 1 Rule 13 of the Civil Procedure Rules. The applicants argued there was an error apparent on the face of the record because the suit was not a representative suit and each plaintiff had an independent claim. The defendants opposed, contending the review threshold had not been met. The court framed three issues: whether the threshold for review under Order 45(1) was met, whether failure to attach the ruling was fatal, and costs. Applying Evan Bwire v Andrew Aginda, Origo v Mungala, Nyamogo & Nyamogo v Kogo and Sadar Mohamed v Charan Singh, the court held that no new and important matter existed, the alleged error was at most an erroneous conclusion of law reviewable only on appeal, and no sufficient reason was elaborated. Relying on Suleiman Murunga v Nilestar Holdings, it further held the application was fatally defective for failure to annex the formal order sought to be reviewed, and noted the unexplained three-month delay. The application was dismissed with costs.

Key legal issues

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01

Whether the applicants met the Order 45 threshold for review

Holding

They did not: all issues raised were the same ones canvassed before the original ruling; there was no new and important matter, no error apparent on the face of the record, and no sufficient reason

Reasoning

The court examined each limb of Order 45(1): discovery of new and important matter, error apparent on the face of the record, and any other sufficient reason. It found the grounds raised were identical to those litigated in the earlier application, so no new matter existed. Reliance was placed on authority that strong grounds are needed, and that an erroneous conclusion of law is a ground for appeal, not review.

p. 2
02

Whether failure to attach the order sought to be reviewed is fatal

Holding

Yes - the application was fatally defective because the formal order/decree of 25th November 2016 was not annexed

Reasoning

Guided by Suleiman Murunga v Nilestar Holdings Limited & Another, the court held that Order 45 Rule 1 requires an applicant for review to annex a formal extracted decree or order in respect of which review is sought. Since the ruling of 25th November 2016 was not annexed, the application was defective.

p. 4
03

Whether the three-month delay was unreasonable

Holding

Three months appears not unreasonable on its face, but unexplained delay may be construed as unreasonable

Reasoning

The ruling sought to be reviewed was delivered in November 2016 and the review application was filed in February 2017. The court noted that while three months does not appear unreasonable, failure to explain the delay may cause it to be construed as unreasonable, citing Abdulrahman Hassan v National Bank of Kenya Ltd.

p. 4

Legal principles established

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  • An erroneous conclusion of law is not a ground for review but a ground for appeal; review cannot be used to invite a court of concurrent jurisdiction to sit on appeal over its own ruling
  • A formal decree or order is a prerequisite before an applicant can bring himself within Order 45 for review; failure to annex it renders the application fatally defective
  • An error apparent on the face of the record must be one on a substantial point of law where there could reasonably be no two opinions

Court orders

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  1. 1.The application dated 2nd February 2017 seeking review of the order issued on 25th November 2016 is dismissed
  2. 2.Costs of the application awarded to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 45(1) and Order 45 Rule 1
  • Civil Procedure RulesOrder 1 Rule 13
  • Civil Procedure RulesOrder 4 Rule 1(6)

Cases cited (10)

  • Evan Bwire v Andrew Aginda
    Civil Appeal No. 147 of 2006
  • Stephen Githua Kimani v Nancy Wanjira Waruingi T/A Providence Auctioneers
    (2016) eKLR
  • Hezekiah Kipkorir Maritim & 10 Others v Philip Kipkoech Tenai & 2 Others
  • Origo & Another v Mungala
    (2005) 2 KLR
  • Jameny Mudaki Asav v Brown Otengo Asava & Another
    (2015) eKLR
  • Nyamogo & Nyamogo v Kogo
    (2001) EA 170
  • Veleo (K) Limited
  • Sadar Mohamed v Charan Singh and Another
  • Abdulrahman Hassan v National Bank of Kenya Ltd
  • Suleiman Murunga v Nilestar Holdings Limited & Another
    (2015) eKLR
Jurisdiction invoked
Order 45(1) of the Civil Procedure Rules (review jurisdiction of the court that made the order)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (22)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Executive Committee Chelimo Plot Owners Welfare Group & 288 others v Langat Joel & 4 others (sued as the Management Committee of Chelimo Squatters Group) [2018] KEELC 3939 (KLR)", Case Analysis (2018). Application dated 2nd February 2017 (suit particulars not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3939/eng@2018-03-13

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