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ELCDismissedNot stated in extract· [2019] KEELC 1611 (KLR)

Hamisi Juma Mbaya v Asman Amakecho Mbaya [2019] KEELC 1611 (KLR)

High Court of Kenya
25 September 2019
1,639 words in judgment
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The bottom line

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A Kakamega court refused to reopen an adverse possession judgment because the case was already on appeal, confirming that review is not a second chance at losing arguments.

What this practically means

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Executive summary

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The applicant filed a notice of application dated 1st April 2019 under Sections 1A, 3A and 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules seeking review of the judgment delivered on 24th July 2018 in his adverse possession claim over L.R. No. South Wanga/Lureko/706. He sought substitution of that judgment with an order declaring him entitled by adverse possession to the portion he occupied, which he said the respondent had admitted and was ready to surrender. The applicant argued an error apparent on the face of the record: plot 3700, a sub-division of the suit property, did not exist because all sub-divisions had been cancelled by the Principal Magistrate's Court at Mumias. The respondent opposed, contending the court had become functus officio after dismissing the claim, that the applicant had admitted a pending appeal before the Court of Appeal at Kisumu, and that the Mumias cancellation had been reversed by the High Court at Kakamega in Civil Appeal No. 33 of 2012. The court applied the Muyodi test for error apparent on the face of the record, holding that the alleged error required drawn reasoning and was arguable, hence no ground for review. Noting it had granted a stay of execution pending appeal on 24th October 2018, the court held it could not review its own judgment while the matter was on appeal, characterized the application as an abuse of process, and dismissed it with costs on 25th September 2019.

Key legal issues

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01

Whether an error apparent on the face of the record existed to justify review

Holding

No error apparent on the face of the record was established; the applicant failed to meet any ground for review under Order 45 rule 1

Reasoning

The court applied the Muyodi test that an error apparent must stare one in the face and leave no room for two opinions. The applicant's assertion that plot 3700 does not exist and was a cancelled sub-division required reasoning to establish and was contested by the respondent, who showed the Mumias cancellation decision was reversed on appeal in Kakamega High Court Civil Appeal No. 33 of 2012. The claimed error was therefore not an error apparent on the face of the record.

p. 2
02

Whether the court could review its judgment while an appeal is pending before the Court of Appeal

Holding

The court declined to review its own judgment because the matter was on appeal; it characterized the application as an abuse of process

Reasoning

On 24th October 2018 the court had granted a stay of execution pending appeal, and the applicant had himself admitted in a chamber summons dated 1st August 2018 that an appeal was pending before the Court of Appeal at Kisumu. The court held that with the matter on appeal it could not review its own judgment, rendering the application an abuse of the court's process and a waste of the court's time.

p. 2

Legal principles established

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  • An error apparent on the face of the record must stare one in the face and admit of no two opinions; a merely erroneous or arguable view is a ground for appeal, not review
  • A court with a judgment under appeal before the Court of Appeal cannot review its own judgment

Court orders

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  1. 1.The application for review is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSections 1A, 3A, 80
  • Civil Procedure RulesOrder 45 rule 1

Cases cited (4)

  • Muyodi V. Industrial and Commercial Development Corporation & Another
    (2006) 1 EA 243
  • Nyamogo & Nyamogo -vs- Kogo
    (2001) EA 174
  • David Sironga Ole Tukai v Francis Arap Muge & 2 others
    [2014] eKLR
  • Gandy v Caspar Air Charters Ltd
    [1956] 23 EACA, 139
Jurisdiction invoked
Sections 1A, 3A, 80 of the Civil Procedure Act, Cap 21 Laws of Kenya and 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, "Hamisi Juma Mbaya v Asman Amakecho Mbaya [2019] KEELC 1611 (KLR)", Case Analysis (2019). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1611/eng@2019-09-25

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