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ELCDismissedNotice of Motion dated 9th July 2018 (arising from consolidated HCA No. 52 of 1996 and HCA No. 19 of 1997)· [2019] KEELC 1411 (KLR)

Dishon Mareko Mwa Ngine & 29 others v Faustino Njeru Njoka & another [2019] KEELC 1411 (KLR)

High Court of Kenya
3 October 2019
YAY.M. Angima
1,744 words in judgment
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The bottom line

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The High Court in Embu dismissed a request to reopen a 1999 land judgment, ruling that 19 years of delay and disagreements with the decision belong in an appeal, not a review.

What this practically means

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Executive summary

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The Applicants, by a notice of motion dated 9th July 2018 brought under Article 159 of the Constitution, Sections 1A and 1B of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, sought review and setting aside of an order and judgment/decree dated 10th November 1999 delivered by Hon. Justice A.G.A. Etyang in consolidated appeals HCA No. 52 of 1996 and HCA No. 19 of 1997. They contended that the consolidation was erroneous as the parties in the two appeals were not identical, that strangers to the suit had earlier filed a review, that prior appeals to the Minister for Lands under Section 29 of the Land Adjudication Act were mishandled and defective, and that lengthy consultations with the Ministry of Lands, the Commission of Inquiry into the land law system and clan elders caused the delay in filing. The Respondents filed no response and neither party filed submissions. The court identified two issues: whether an error of law apparent on the face of the record had been demonstrated, and whether the application was filed without unreasonable delay. Relying on National Bank of Kenya Ltd v Ndungu Njau, the court held that reviewable errors must be self-evident, that commonality of parties is not the sole test for consolidation (citing RMG v NG and Nyati Security Guards), and that any errors in the consolidation or in prior proceedings were matters for appeal, not review. The application, filed about 19 years after the judgment, was also found to have been brought after unreasonable and unexplained delay. The motion was dismissed in its entirety with each party bearing their own costs.

Key legal issues

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01

Whether errors apparent on the face of the record were demonstrated

Holding

No error apparent on the face of the record was demonstrated; the alleged defects in consolidation and prior proceedings could not be remedied by review

Reasoning

The court applied Order 45 Rule 1 and the Ndungu Njau standard that a reviewable error must be self-evident and require no elaborate argument. It held that consolidation did not require identical parties, citing RMG v NG and Nyati Security Guards, and that even a wrong consolidation would be an appellate, not reviewable, issue. Anomalies in prior appeals before the Minister under Section 29 of the Land Adjudication Act likewise could not be cured by review.

p. 3
02

Whether the application was filed without unreasonable delay

Holding

The application, filed about 19 years after the judgment, was unreasonably delayed with no plausible explanation

Reasoning

The judgment under review was delivered on 10th November 1999 and the application filed on 17th July 2018. The Applicants' explanation - consultations with clan elders, the Ministry of Lands and the Commission of Inquiry - ended with the Ministry's advice in a letter dated 30th April 2003, yet the application was not filed for a further 15 years. The delay of over 19 years was therefore unexplained and unreasonable under Order 45 Rule 1.

p. 4

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require elaborate argument; disagreements with the correctness of a decision are matters for appeal, not review
  • Consolidation of suits does not require identical parties; common questions of law or fact suffice
  • Applications for review must be filed without unreasonable delay

Court orders

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  1. 1.The Applicants' notice of motion dated 9th July 2018 is dismissed in its entirety
  2. 2.Each party shall bear his own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure Act (Cap. 21)Sections 1A and 1B
  • Civil Procedure RulesOrder 45 Rule 1
  • Land Adjudication Act (Cap. 284)Section 29

Cases cited (3)

  • National Bank of Kenya Ltd Vs Ndungu Njau
    Civil Appeal No. 211 of 1996 (1997) eKLR
  • RMG Vs NG & Another
    [2013] eKLR
  • Nyati Security Guards & Services Ltd Vs Municipal Council of Mombasa
    [2004] eKLR
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A and 1B of the Civil Procedure Act (Cap. 21); Order 45 Rule 1 of the Civil Procedure Rules

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, "Dishon Mareko Mwa Ngine & 29 others v Faustino Njeru Njoka & another [2019] KEELC 1411 (KLR)", Case Analysis (2019). Notice of Motion dated 9th July 2018 (arising from consolidated HCA No. 52 of 1996 and HCA No. 19 of 1997). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1411/eng@2019-10-03

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