Isaac Indah Muchesi v Lawrence Gichuru Njenga & 3 others [2018] KEELC 4015 (KLR)
The bottom line
#A Nakuru court dismissed a landowner's attempt to review a 2013 ruling, finding an unexplained four-year delay alone was fatal to the application.
What this practically means
#Executive summary
#Key legal issues
#Unreasonable delay in bringing the application for review
The application filed on 11th July 2017, three years and eleven months after the order sought to be reviewed, was made after unreasonable delay with no explanation, which alone was sufficient to dismiss it.
Order 45 rule 1 requires that a review application be made without unreasonable delay. The requirement protects the finality of judicial outcomes and reflects the principle that litigation must come to an end, as stated by the Supreme Court in Teachers Service Commission v Simon P. Kamau & 19 others. Article 159(2)(b) of the Constitution directs that justice shall not be delayed. The applicant offered no explanation whatsoever for the almost four-year delay, so the court found the delay unreasonable.
Whether an alleged erroneous finding of law and evidence constitutes an error apparent on the face of the record
No. The alleged error - the judge's finding that the 1st respondent lacked capacity to enter into sale agreements - was at most an erroneous conclusion of law and evidence, which is a ground for appeal, not review.
The court held that Order 45 rule 1 is specific and limiting as to the grounds for review. An applicant must state clearly the grounds relied upon. The error alleged was that the judge found the 1st respondent lacked capacity to enter sale agreements yet held the balance of convenience tilted to the defendants. The court found that if that were an error, it was an erroneous conclusion of law and evidence, citing Origo & Another v Mungala as adopted in Jameny Mudaki Asava v Brown Otengo Asava & another.
Whether the court could revisit the merits of the application dated 11th February 2013
The court had no jurisdiction to revisit the merits of the application already heard and determined by the learned judge; doing so would amount to sitting on appeal from that decision.
Prayer 3 of the application and paragraphs 5 to 14 of the supporting affidavit showed the applicant was seeking a second chance to argue the application dated 11th February 2013. That application had been heard and determined by the learned judge. The court held it lacked jurisdiction to revisit it, since that would amount to sitting on appeal from the said decision, which review jurisdiction does not permit.
Legal principles established
#- An application for review under Order 45 rule 1 must be made without unreasonable delay, and unexplained delay of nearly four years is unreasonable and independently fatal to the application.
- An erroneous conclusion of law or evidence is not a ground for review but may be a ground for appeal.
- A court hearing an application for review cannot revisit the merits of a matter already heard and determined by another judge, as that would amount to sitting on appeal from that decision.
Court orders
#- 1.Notice of Motion dated 6th July 2017 dismissed with costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 rules 1 and 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Safe Haven Limited v Omar & 4 others[2023] KEELC 21578 (KLR)17 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "Isaac Indah Muchesi v Lawrence Gichuru Njenga & 3 others [2018] KEELC 4015 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4015/eng@2018-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.