Seventh Day Adventist Church (East Africa) Ltd – Victory SDA Church v Caleb Ouma,Sam Otieno, Richard Oluoch, Barrack Were & Abas Waheb, (Environment & Land Case 806 of 2015) [2019] KEELC 729 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Threshold for seeking orders of review or setting aside orders
- 2.Whether the issuance of the Consent Order in ELC No. 25 of 2018 constituted a sufficient ground to review or set aside the Eviction Order
Key legal issues
#Whether the threshold for review under Order 45 of the Civil Procedure Rules was met
No - the grounds for review are restricted and the Applicants did not satisfy any of them.
Order 45 permits review only on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason analogous to those grounds, and the application must be made without unreasonable delay. The court adopted Mativo J.'s elaboration of 'sufficient reason' in Stephen Gathua Kimani, citing Indian authority that review cannot be a fresh hearing but only correction of patent error. The Applicants established none of these grounds.
Whether the Consent Order in ELC No. 25 of 2018 was new and important matter unknown to the Applicants
No - the Applicants were in close communication with the parties in that suit and likely knew of the Consent Order well before the application for eviction.
The Secretary of the 2nd Plaintiff in ELC No. 25 of 2018 deponed that the Applicants had informed them of the judgment and Eviction Order in this suit, showing close communication. It was therefore highly unlikely the Applicants lacked knowledge of the Consent Order of 4 October 2018 by the time the Respondent filed its eviction application of 19 March 2019.
Whether the Applicants had standing to rely on the Consent Order and whether they came to court with clean hands
The Applicants' basis of occupation contradicts the claim of the Plaintiffs in ELC No. 25 of 2018, making them strangers to that suit; they did not approach the court with clean hands.
In this suit the Applicants claim occupation allocated by the Municipal Council of Kisumu; in ELC No. 25 of 2018 their occupation is said to rest on the authority of the Plaintiffs there. These contradictory positions mean they cannot be considered parties to the 'main suit' they invoke and cannot benefit from an order in a separate action that contradicts their standing here.
Legal principles established
#- The expression 'any other sufficient reason' for review under Order 45 refers only to grounds analogous to discovery of new matter or error apparent on the face of the record.
- A pending land dispute over the same subject matter is not, of itself, a ground to reopen a concluded case.
- An order of eviction that removes licensees in occupation contrary to a consent status quo order may reinforce rather than violate that consent order.
Court orders
#- 1.The application to set aside and review the orders of 18th September 2019 (the Eviction Order) is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (powers of review)
Relief refused
#Recall, review and setting aside of the Eviction Order dated 18 September 2019
The Consent Order of 4 October 2018 was not new and important matter discovered after due diligence; the Applicants knew of it, and their standing in the two suits is contradictory and they did not come with clean hands.
Costs
The application is dismissed with costs (costs to the Plaintiff/Respondent).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In summary, the Consent Order of 4 th October 2018 in ELC 25 of 2018 cannot be considered a new and important matter necessitating review or setting aside of the Eviction Order. It merely indicates that there is a separate legal dispute yet to be settled over the same subject matter in this suit.
The upshot of the above is therefore that the application to set aside and review the orders of 18 th September 2019 ought to be, and is hereby, dismissed with costs.
It must be remembered that even a land dispute must be brought to an end and a land dispute per se is no ground to reopen a case, which is concluded.
The contradictions as to the nature of the Applicants’ occupation of the suit property leads to a reasonable inference that the Applicants have not approached the court with clean hands.
Issues in the judgment
#The case title/number of the application before the court is not expressly stated; the judgment opens with the Notice of Motion of 8 October 2019 but the record does not clearly identify this application's own file number, only the related suits (main suit and ELC No. 25 of 2018).
The parties as named are not set out in the coram; the judgment refers only to 'Plaintiff' and 'Defendants', with the related suit identifying the Plaintiff as Seventh Day Adventist Limited.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seventh Day Adventist Church (East Africa) Ltd – Victory SDA Church v Caleb Ouma,Sam Otieno, Richard Oluoch, Barrack Were & Abas Waheb, (Environment & Land Case 806 of 2015) [2019] KEELC 729 (KLR)", Case Analysis (2019). ELC No. 25 of 2018 (application arising therein; main suit judgment delivered 16 May 2018; related Eviction Order dated 18 September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/729/eng@2019-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.