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ELCDismissedNot stated in the judgment (ruling on application dated 30th May 2019)· [2019] KEELC 2312 (KLR)

Musa Lichungu v Mamisabu Arap Sitienei [2019] KEELC 2312 (KLR)

High Court of Kenya at Kakamega
23 July 2019
NMN. A. Matheka
1,523 words in judgment
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The bottom line

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The Kakamega High Court dismissed a bid to change lawyers, substitute a deceased appellant, and halt execution over a family land parcel, with costs.

What this practically means

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Executive summary

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This is a ruling of the High Court at Kakamega delivered on 23rd July 2019 by N.A. Matheka, J, on an application dated 30th May 2019 brought under Order 9 Rule 9, Order 24 Rule 3(1) and Order 42 rule 6 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act. The applicant, Jefetha Mbakaya Musa, son and ad litem administrator of the deceased appellant Musa Lichungu, sought leave for J.N. Njuguna & Co. Advocates to come on record in place of Amasakha & Company Advocates, substitution as appellant, and stay of execution of the judgment delivered on 8th May 2019 together with maintenance of status quo on land parcel LR No. Kakamega/Chemuche/355, where the family had lived and cultivated for over thirty years, pending an intended appeal to the Court of Appeal. The application was unopposed. The court, however, framed its analysis around the law of review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(b), citing Kwame Kariuki v Mohamed Hassan Ali, Mwihoko Housing Company v Equity Building Society, Rose Kaiza v Angelo Mpanju Kaiza and National Bank of Kenya v Ndungu Njau. It held that the applicant had failed to show any mistake or error apparent on the face of the record or any sufficient reason to set aside the court's decision, and dismissed the application with costs. There is a material mismatch between the relief sought and the review analysis undertaken.

Key legal issues

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01

Whether the court could grant the relief sought in the application dated 30th May 2019

Holding

The court held that the applicant failed to demonstrate any mistake or error apparent on the face of the record or any sufficient reason to justify disturbing the court's earlier decision, and dismissed the application with costs.

Reasoning

The court set out the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1(b), citing authorities on the requirement of a self-evident error. It noted that the discretion to review must be exercised judiciously, not capriciously, and found no error or omission on the court's part when it dismissed the appeal, concluding that the application lacked merit.

p. 2

Legal principles established

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  • Once an appeal has been preferred, review is no longer available as the affected order can only be re-examined on appeal
  • Review may only be granted to correct a self-evident error or omission apparent on the face of the record, not because another court might take a different view

Court orders

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  1. 1.The application dated 30th May 2019 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 24 Rule 3(1)
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 45 Rule 1(b)
  • Civil Procedure Act Cap 21 Laws of KenyaSections 1A, 1B, 3, 3A and 63
  • Civil Procedure Act Cap 21 Laws of KenyaSection 80

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
Sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act Cap 21 and Orders 9, 24 and 42 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, "Musa Lichungu v Mamisabu Arap Sitienei [2019] KEELC 2312 (KLR)", Case Analysis (2019). Not stated in the judgment (ruling on application dated 30th May 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2312/eng@2019-07-23

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