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ELCDismissedNot stated in the excerpt· [2019] KEELC 2290 (KLR)

Jesica Songole & another v Charles A. Muyunzu Kwenya & another [2019] KEELC 2290 (KLR)

Environment and Land Court
23 July 2019
1,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega refused to revive a land suit dismissed as previously decided, ruling that appeals — not review — are the correct remedy.

What this practically means

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Executive summary

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The plaintiff filed a notice of motion dated 24th June 2016 under Order 45 rules 1, 2 and 3 of the Civil Procedure Rules 2010 and Section 63(e) of the Civil Procedure Act seeking review of the judgment that had dismissed the plaintiff's suit as res judicata, setting aside the award of costs, and costs of the application. The applicant argued there was an error apparent on the face of the record because the suit had been commenced on the advice of the Chief Magistrate's Court, that the award of costs was harsh, and that there was sufficient cause for review. The 2nd respondent opposed the motion as an abuse of process, vexatious and procedurally defective, contending that the suit had been struck out on 11th May 2016 as res judicata having been previously litigated in Civil Case 64 of 1985, Misc. Civil Application 1/95, ELC 138/2015 and Succession Cause 2344/2007, and that no error apparent on the face of the record or sufficient cause under Order 45 had been demonstrated. Matheka J considered Order 45 rule 1(b) and Section 80 of the Civil Procedure Act and the authorities on review, including National Bank of Kenya v Ndungu Njau and Mwihoko Housing Company Limited v Equity Building Society. The court held the applicant failed to demonstrate any mistake or error apparent on the face of the record or any other sufficient reason for review; the suit had been struck out as res judicata, not on the merits, and reviewing the decision would amount to reviewing a decision of a court of concurrent jurisdiction, a power the court does not have. The proper remedy was an appeal. The application was dismissed with costs.

Key legal issues

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01

Whether the requirements for review under Order 45 rule 1(b) and Section 80 of the Civil Procedure Act were met

Holding

The application fails; no error apparent on the face of the record, no new and important matter, and no other sufficient reason was established to warrant review of the judgment dismissing the suit as res judicata.

Reasoning

The court examined Order 45 rule 1(b) and Section 80 of the Civil Procedure Act and the case law on review. Review requires discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, and the discretion must be exercised judiciously. The suit had been struck out as res judicata, not on the merits, and the applicant identified no self-evident error. Reviewing the decision would amount to reviewing a decision of a court of concurrent jurisdiction, a power the court lacks; the applicant's remedy is an appeal.

p. 2

Legal principles established

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  • Review is only available where no appeal has been preferred against the order; once an appeal is preferred the court whose order is appealed from cannot review it.
  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a different view of the matter or an incorrect exposition of the law is not a ground for review.
  • A court cannot review its own decision that struck out a suit as res judicata where that would amount to reviewing a decision of a court of concurrent jurisdiction; the remedy is appeal.

Court orders

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  1. 1.The notice of motion dated 24th June 2016 seeking review is dismissed with costs
  2. 2.It is so ordered

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 45 rules 1, 2 & 3; Order 45 rule 1(b)
  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 63(e); Section 80; Section 7

Cases cited (4)

  • Kwame Kariuki & Another Vs. Mohamed Hassan Ali & 4 Others
    (2014) eKLR
  • Mwihoko Housing Company Limited Vs Equity Building Society
    (2007) 2 KLR 171
  • Rose Kaiza Vs Angelo Mpanju Kaiza
    2009
  • National Bank of Kenya Vs Ndungu Njau
    Civil Appeal No. 2111 of 1996
Jurisdiction invoked
Order 45 rules 1, 2 & 3 of the Civil Procedure Rules 2010 and Section 80 and 63(e) of the Civil Procedure Act

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, "Jesica Songole & another v Charles A. Muyunzu Kwenya & another [2019] KEELC 2290 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2290/eng@2019-07-23

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