Edward Wanyonyi Masibili v Benard Munialo Manyonge & another [2019] KEELC 731 (KLR)
The bottom line
#A Bungoma land court refused to undo a 2016 judgment because the defendants had already appealed and waited two years without a valid reason.
What this practically means
#Executive summary
#Key legal issues
#Competency of the application for review
The review was incompetent because the defendants had filed a Notice of Appeal against the judgment of 29th November 2016
Order 45 Rule 1(1) confines review to decrees from which no appeal has been preferred. The defendants filed a Notice of Appeal on 13th December 2016; lodging a Notice of Appeal is deemed filing an appeal, so the review route was shut. The Court of Appeal in Rose Lwakosa v Keith Gogo Asava was applied to that effect.
Unreasonable delay in seeking review
The two-year delay between the judgment and the review application was unreasonable and unexplained
The judgment was delivered on 29th November 2016 and the application filed on 20th November 2018. The defendants' advocate was present when judgment was delivered and must have informed them of its contents; the 2nd defendant did not say when he first learnt of the judgment. Precedents holding three and four months' delays unreasonable were cited.
Whether the judgment was ex-parte or default and settable aside
The judgment was neither ex-parte nor a default judgment but a final judgment after the defence was struck out for non-compliance, so setting aside was unavailable
The defendants were served, filed a defence, and were present when directions issued on 20th May 2014, with counsel undertaking to comply. Their defence was struck out on 30th November 2015 for non-compliance and no appeal was filed against that decision. The court, exercising Order 11 case-management powers, could strike out the defence; the resulting judgment was final and could only be challenged on appeal or review.
Candour of the defendants
The defendants were not candid in claiming loss of contact with their advocate
The 2nd defendant claimed his advocate closed his Bungoma office and moved to Kitale, yet the same advocate filed the Notice of Appeal on 13th December 2016, necessarily on the defendants' instructions, showing he was in touch with them. A party seeking setting aside, an equitable remedy, must come with clean hands.
Legal principles established
#- A party who has filed a Notice of Appeal cannot apply for review under Order 45 Rule 1(1) of the Civil Procedure Rules
- An application for review must be made without unreasonable delay
- Misconstruction of law or evidence by a judge is a ground of appeal, not a ground for review
- The Civil Procedure Rules contain no provision for setting aside a final judgment; the aggrieved party's remedies are review under Order 45 or appeal under Order 42
- A party who fails to comply with court directions and offers no explanation cannot benefit from the court's discretion, especially after unexplained delay
Court orders
#- 1.Prayer No. (b), allowing the firm of J. W. Sichangi & Co. Advocates to come on record in place of Kraido & Co. Advocates, had already been allowed by consent order dated 20th November 2018
- 2.The Notice of Motion dated 20th November 2018 is dismissed with costs, save for prayer No. (b)
- Jurisdiction invoked
- Original jurisdiction of the High Court/Environment and Land Court over land parcel Ndivisi/Muchi/992, with the application brought under Order 45 Rule 1(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Wanyonyi Masibili v Benard Munialo Manyonge & another [2019] KEELC 731 (KLR)", Case Analysis (2019). Bungoma ELC Case (plea dated 3rd September 2004) - Notice of Motion dated 20th November 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/731/eng@2019-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.