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ELCPartially AllowedNot stated in the extract (ELC suit, Nyahururu)· [2019] KEELC 410 (KLR)

Shedrack Kiruki M’Iaaria v Samuel Kiptanui Korir & 5 others [2019] KEELC 410 (KLR)

Environment and Land Court
10 December 2019
MOM.C. Oundo
3,324 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who lost an injunction ruling in 2013 couldn't revive it years later through review — instead of appealing, he lost and paid the other side's costs.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Environment and Land Court at Nyahururu by a Notice of Motion dated 17th September 2019, expressed to be brought under Order 1 Rule 10, Order 40 Rules 1-3 and 10 and Order 51 of the Civil Procedure Rules. He sought (i) enjoining of intended 4th to 6th Defendants, (ii) review of the ruling of 19th April 2013 which had declined interlocutory injunctive relief over LR No. 9379, and (iii) restraining orders against the 1st to 3rd Defendants from settling other persons on the suit land pending determination of the suit. He relied on a conviction of the 1st to 3rd Defendants for forceful detainer in Nyahururu Criminal Case No. 1036 of 2012 (judgment of 5th April 2015) as new and important matter, alleging the Respondents had breached the status quo ordered in 2013. The Respondents opposed, contending the application was a regurgitation of the 2012 application, that no appeal had been filed against the ruling, that the conviction was itself under appeal in Nakuru High Court Criminal Appeal No. 173 of 2015, and that final orders were being sought at an interlocutory stage. The court allowed the unopposed joinder of the 4th to 6th Defendants with leave to amend the Plaint, but declined review, holding the Applicant had met none of the Order 45 Rule 1 conditions, and that a conviction under appeal could not ground review. It dismissed the application and confirmed the status quo ordered on 19th April 2013, awarding costs to the Respondents.

Key legal issues

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01

Whether the Applicant satisfied the review threshold under Order 45 Rule 1

Holding

The Applicant failed to satisfy any of the conditions for review; the criminal conviction of the 1st-3rd Defendants did not amount to new and important matter and the application came six years after the ruling

Reasoning

The court held that the ruling of 19th April 2013 appropriately canvassed the issues of interlocutory mandatory injunction and adverse possession. No appeal was lodged against it. The conviction in Criminal Case No. 1036 of 2012 was under appeal and could not ground review, particularly against the 4th-6th Defendants who were not parties to the criminal case.

p. 4
02

Whether the intended 4th to 6th Defendants should be joined

Holding

Joinder allowed as it was unopposed

Reasoning

The Respondents did not oppose prayers for enjoining the 4th to 6th Defendants. The court allowed joinder and granted leave to amend the Plaint so that the new parties could participate in the suit.

p. 3

Legal principles established

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  • The grounds for review under Order 45 Rule 1 are discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay
  • A review cannot be used as a substitute for an appeal against a ruling of a court of concurrent jurisdiction
  • An applicant for review must not have appealed the decision and must apply without unreasonable delay

Court orders

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  1. 1.The intended 4th to 6th Defendants are enjoined as the 4th to 6th Defendants to the suit
  2. 2.Leave granted to the Plaintiff to amend the Plaint enjoining the said Defendants
  3. 3.The application dated 17th September 2019 is dismissed in respect of the prayer for review
  4. 4.The orders of status quo to be maintained as earlier directed in the ruling of 19th April 2013 are confirmed
  5. 5.Costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Rules, 2010Order 1 Rule 10
  • Civil Procedure Rules, 2010Order 40 Rules 1-3 and Rule 10
  • Civil Procedure Rules, 2010Order 51 Rule 1-3
  • Penal CodeSection 91

Cases cited (1)

  • Ajit Kumar Rath vs State of Orisa & Others
    null
Jurisdiction invoked
Order 45 Rule 1 and Section 80 of the Civil Procedure Act (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, "Shedrack Kiruki M’Iaaria v Samuel Kiptanui Korir & 5 others [2019] KEELC 410 (KLR)", Case Analysis (2019). Not stated in the extract (ELC suit, Nyahururu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/410/eng@2019-12-10

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