Elijah Chepkwony Chirchir v Joel Kipngeno Rop [2019] KEELC 2744 (KLR)
The bottom line
#The Kericho Environment and Land Court reinstated a land suit struck out over a defective grant, blaming a registry error, but made the plaintiff pay costs.
What this practically means
#Executive summary
#Key legal issues
#Whether an error attributable to High Court Registry staff in a Limited Grant constitutes sufficient cause for review under section 80 of the Civil Procedure Act and Order 45
Yes; the court accepted the Plaintiff's explanation that the grant erroneously described its purpose due to a registry mistake, and exercised its discretion to review.
The court perused the file for HC Ad Litem No. 6 of 2017 and confirmed the applicant had applied for a grant for filing suit, yet the issued grant described it as for securing and protecting assets. Since the error was traceable to the registry rather than the applicant, the court accepted the explanation and, guided by the overriding objective and the Chemwolo dictum, found sufficient cause to review.
Whether failure to annex the order sought to be reviewed defeats an application for review
It is a statutory requirement and not a mere technicality, but in the peculiar circumstances of this case the court did not lock out the applicant.
The court adopted the Kitonga, Ondieki and Githinji authorities that the order must be annexed, and expressly rebuked counsel for blaming the court. However, because the chain of events traced back to the registry's mistake and the oxygen principles favour determination on the merits, the court excused the omission in the interests of justice.
Whether an erroneous conclusion of law is a ground for review rather than appeal
The defendant argued, citing National Bank of Kenya v Ndungu Njau, that error of law is for appeal not review; the court did not rest on that ground but on the registry mistake.
The defendant's authorities stressed that locus standi goes to the root of a suit and that an erroneous conclusion of law warrants appeal, not review. The court distinguished these by finding the error was not a legal error in the ruling itself but a clerical mistake in the grant supplied by the registry, bringing the case within sufficient cause for review.
Legal principles established
#- The conditions for review are discovery of a new and important matter, an error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay.
- A party seeking review must annex a copy of the order sought to be reviewed; this is a statutory requirement under section 80 of the Civil Procedure Act and not a curable technicality.
- Mistakes by counsel or registry staff should not ordinarily bar a party from having their case heard on the merits, provided there is no fraud or intention to overreach.
Court orders
#- 1.The order striking out the Plaintiff's suit dated 14th March 2019 is set aside
- 2.The suit is reinstated
- 3.The Plaintiff shall pay the Defendant's thrown away costs of Kshs. 30,000
- 4.The Defendant shall have the costs of the application
- Jurisdiction invoked
- Discretion to grant review under section 80 of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elijah Chepkwony Chirchir v Joel Kipngeno Rop [2019] KEELC 2744 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2744/eng@2019-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.