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ELCAllowedNotice of Motion dated 8th July, 2019 (in the pending suit, Narok)· [2019] KEELC 1659 (KLR)

Nadutari Koriata v Nareiyo Koriata & 4 others [2019] KEELC 1659 (KLR)

Environment and Land Court (as constituted at Narok)
20 September 2019
MKMohammed Kullow
890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan land court corrected its own factual errors and allowed a landowner to lease her land while the main case continues.

What this practically means

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Executive summary

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By a Notice of Motion dated 8th July, 2019, the 1st Defendant sought review of the court's ruling of 26th June, 2019, which had restrained her from leasing her land, and sought substitution with an order permitting her to lease but not dispose of it. She argued she was the registered owner of the suit parcel, that leases with third parties predated the suit, and that the ruling contained errors of fact. The Plaintiff/Respondent opposed, alleging the disputed portion was forcefully taken from him, but accepted she could harvest the current crop; the 2nd Respondent confirmed he had leased the land since 2011. The court applied Order 45 of the Civil Procedure Rules, finding the application was made without undue delay, and that the ruling contained factual errors apparent on the face of the record - notably the wrong parcel number (483 rather than 484) and a wrong description of the access road - which the Respondent did not contest. Finding the application worthy of the exercise of its discretion, the court reviewed and varied its earlier orders: it recorded the ownership of parcels 484 and 483, corrected the road description, permitted the Respondent (the 1st Defendant) to lease but not dispose of her land, maintained the status quo as at filing of the suit pending hearing and determination of the substantive suit, and ordered each party to bear its own costs given that the Plaintiff and 1st Defendant are co-wives. The substantive suit remains pending for trial.

Key legal issues

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01

Undue delay in applying for review

Holding

The application, filed on 8th July 2019 following a ruling delivered on 26th June 2019, was made without undue delay.

Reasoning

The court compared the date of the ruling under review with the date of filing the review application. Since the application was lodged roughly two weeks after the ruling, the court found no undue delay within the meaning of Order 45 of the Civil Procedure Rules.

p. 1
02

Errors apparent on the face of the record

Holding

The ruling contained factual errors apparent on the face of the record (wrong parcel number and wrong road description), which were not contested by the Respondent.

Reasoning

The court compared the ruling with the pleadings and the application, and found the Applicant had identified genuine mistakes: the parcel number stated in the ruling was wrong, and the land lies on a feeder road off the Narok/Bomet Road. The Respondent did not contest these errors. The errors were factual, not legal, satisfying Order 45.

p. 2
03

Discretion to review and vary the leasing restraint

Holding

The court exercised its discretion to review the orders, allowing the 1st Defendant to lease (but not dispose of) her land while maintaining the status quo pending trial.

Reasoning

The court noted the Applicant is the registered owner of the land, that the Respondent did not dispute registration (though he alleges the land was forcefully taken from him, a matter for full trial), and that restraining her from leasing was prejudicial. It varied the orders to permit leasing without disposal and maintained the status quo.

p. 2

Legal principles established

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  • Review under Order 45 lies for errors apparent on the face of the record, provided the application is made without undue delay.

Court orders

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  1. 1.Declared that the Plaintiff is the registered owner of suit parcel No. NAROK/CIS MARA/OLOLULUNGA/484 while the 1st Respondent is the owner of NAROK/CIS MARA/OLOLULUNGA/483
  2. 2.Declared that the suit land is situated on a feeder road off the Narok/Bomet Road
  3. 3.The Respondent be at liberty to lease her land and not dispose it
  4. 4.The order of status quo as obtaining at the filing of the suit be maintained pending hearing and determination of the suit
  5. 5.Since the Plaintiff and the 1st Defendant are co-wives, each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45
Jurisdiction invoked
Order 45 of the Civil Procedure Rules (review of orders)

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, "Nadutari Koriata v Nareiyo Koriata & 4 others [2019] KEELC 1659 (KLR)", Case Analysis (2019). Notice of Motion dated 8th July, 2019 (in the pending suit, Narok). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1659/eng@2019-09-20

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