Raphael Mitau King’alya & another v Kilonzo King’alya & another; Mbusi Mulanga (Interested Party) [2019] KEELC 1972 (KLR)
The bottom line
#The High Court dismissed a bid to overturn 2007 eviction orders, confirming that ignoring a court application is not a reason for review—appeal is the proper remedy.
What this practically means
#Executive summary
#Key legal issues
#Whether the orders of 11th October, 2007 could be reviewed or set aside
The application for review failed because the Interested Party did not respond to the underlying application and showed no reviewable error; his remedy was appeal.
The court set out Order 45 Rule 1(1) of the Civil Procedure Rules as the governing law on review. The record showed the Interested Party filed no Replying Affidavit to the Notice of Motion dated 9th May, 2007, which produced the eviction orders. Non-response without good reason cannot be a ground for review, and complaints that another court order (in Misc. Application No. 698 of 1986) covered the same land ought to have been raised on appeal, not review.
Whether the 1990 Judgment had been set aside
Despite the Interested Party being enjoined in the suit in 2004, there was no evidence that the Judgment of 25th April, 1990 had been set aside.
The Interested Party had earlier applied to be joined and to set aside orders of 4th May, 1992 and 1st July, 1997, alleging nondisclosure of orders in High Court Miscellaneous Civil Application No. 698 of 1986. Although he was enjoined, the court found no evidence that the Judgment of 25th April, 1990 in favour of the Plaintiffs was ever set aside, so execution proceeded against him as a trespasser.
Legal principles established
#- Failure to respond to an application that gave rise to an impugned order is not a ground for review of that order; the remedy is appeal
- Review under Order 45 requires new and important matter, mistake or error apparent on the face of the record, or other sufficient reason
Court orders
#- 1.The Application dated 23rd November, 2007 is dismissed with no order as to costs
- 2.The suit is marked as having been finalized
- Jurisdiction invoked
- Inherent jurisdiction to review its own orders under Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Mitau King’alya & another v Kilonzo King’alya & another; Mbusi Mulanga (Interested Party) [2019] KEELC 1972 (KLR)", Case Analysis (2019). Notice of Motion dated 23rd November, 2007 (suit filed in 1985). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1972/eng@2019-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.