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ELCDismissedNot stated in the judgment (ELC suit at Eldoret)· [2019] KEELC 794 (KLR)

Toroitich Misoi Mereng v Simeon Kiprotich Katam [2019] KEELC 794 (KLR)

Environment and Land Court
13 November 2019
SKS. M. Kibunja
1,095 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to revive a dismissed suit because repeated excuses aren't grounds for review — the proper route was an appeal.

What this practically means

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Executive summary

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The Plaintiff, Toroitich Misoi Mereng, moved the Environment and Land Court at Eldoret by Notice of Motion dated 6th May, 2019 seeking review of the court's ruling of 8th April, 2019 (described in the Motion as 8th May, 2019) and substitution with an order setting aside the order of 4th December, 2017, which had dismissed his 2014 suit for want of prosecution when neither party attended. His suit had earlier been dismissed and the dismissal application was itself rejected. He relied on grounds including sickness (high blood pressure and a mild stroke since 2015), medication, and a mistaken belief that the 4th December 2017 appearance was a mention, invoking Articles 22, 23, 28, 40, 43, 45, 48, 50 and 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act. The Defendant opposed, contending nothing new had been tendered to meet the review threshold and that the application was an abuse of process, the sickness claim having been raised and found wanting earlier. The court framed two issues: whether a reasonable case for review and reinstatement was made, and costs. It found the same reasons had been considered and rejected in the 8th April 2019 ruling and were not new matters within Order 45(1); the application in substance attacked the merits of that ruling, a matter for the Court of Appeal, as the court cannot sit in appeal over its own ruling. The Motion was dismissed with costs to the Defendant under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the plaintiff made out a case for review under Order 45(1) and reinstatement of his dismissed suit

Holding

No. The reasons relied on (sickness, medication and belief the date was for mention) were already raised and rejected in the ruling of 8th April, 2019; there was no new or important matter, and the application effectively challenges the merits of that ruling, which only an appeal can do.

Reasoning

The court traced the record showing the hearing date was fixed in the presence of both counsel on 25th July 2017, and that the plaintiff's affidavit of 6th December 2017 raised the same sickness and medication grounds later repeated in the 2019 Motion. The court had considered and rejected those reasons in its earlier ruling. Re-agitating them without anything new fails to meet Order 45(1), and attacking the merits of the ruling is a matter for the Court of Appeal.

p. 2
02

Costs of the application

Holding

The Plaintiff, having failed, to bear the costs under Section 27 of the Civil Procedure Act.

Reasoning

Costs follow the event; the unsuccessful applicant for review was ordered to pay the costs of the application.

p. 2

Legal principles established

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  • A court cannot sit on appeal over its own ruling; a party aggrieved by the merits of a ruling must appeal
  • An applicant for review must satisfy the grounds in Order 45(1) of the Civil Procedure Rules, including discovery of new and important matter not within his knowledge

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 6th May, 2019 is dismissed
  2. 2.The Plaintiff to pay the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 28, 40, 43, 45, 48, 50 and 159
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Sections 1A, 1B, 3A, 80 and 27
  • Civil Procedure RulesOrder 45(1)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 45 of the Civil Procedure Rules; Articles 22, 23, 28, 40, 43, 45, 48, 50 and 159 of the Constitution invoked by the applicant

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, "Toroitich Misoi Mereng v Simeon Kiprotich Katam [2019] KEELC 794 (KLR)", Case Analysis (2019). Not stated in the judgment (ELC suit at Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/794/eng@2019-11-13

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