Clement O Odhiambo v Land Registrar, Uasin-Gishu County; Simon Beru Imoli & 11 others (Applicants) [2019] KEELC 1781 (KLR)
The bottom line
#The Environment and Land Court in Eldoret cancelled land transfer orders made without hearing affected parties, confirming Kenyan courts will reverse decisions made behind people's backs.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established grounds for review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010
The court found sufficient reasons for review, namely failure to serve the affected parties and non-disclosure of pending suits over some of the parcels sought to be transferred, and set aside the orders of 23rd July 2018.
The court enumerated the Order 45 grounds and asked whether the applicant had established any of them. On the record, the beneficiary list annexed to the respondent's affidavit showed parcels claimed in pending suits (e.g. in HCCC 1013 of 2012) being earmarked for transfer to different individuals, demonstrating non-disclosure. Further, the orders of 23rd July 2018 were made without hearing parties in court Number 1015/2012. These constituted sufficient reasons for review.
Whether the Miscellaneous Application dated 3rd May 2018 should be struck out for abuse of process
The court declined to strike out the application and instead ordered service on all affected persons for its hearing and determination.
Although the applicant alleged that the proceedings were an abuse of the court process and an attempt to overreach, the court chose a remedial course: rather than strike out the underlying Miscellaneous Application of 3rd May 2018, it directed that all affected persons be served so the application could be heard and determined on its merits with all interested parties present.
Legal principles established
#- A court may review its orders where there is discovery of new and important matter, an error apparent on the face of the record, or other sufficient reasons, provided the application is made without undue delay.
- Orders made without affording affected parties a hearing and without disclosure of pending suits over the properties are liable to be set aside on review for sufficient reasons.
Court orders
#- 1.The orders of the court given on 23rd July 2018 are set aside on grounds of failure to serve the affected parties and failure to disclose pending suits over some of the properties
- 2.The Miscellaneous Application dated 3rd May 2018 is not struck out; all affected persons are to be served with the said application for purposes of its hearing and determination
- 3.The costs of this application to be borne by Clement Ooko Odhiambo, the Respondent
- Jurisdiction invoked
- Sections 80 and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clement O Odhiambo v Land Registrar, Uasin-Gishu County; Simon Beru Imoli & 11 others (Applicants) [2019] KEELC 1781 (KLR)", Case Analysis (2019). Miscellaneous Application dated 17/9/2018 (arising from orders given on 23/7/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1781/eng@2019-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.