Borana Kiara v Bilista Kambura Miriti (Representing the Estate of Adelina Gaaji Magiri (Deceased) [2019] KEELC 3233 (KLR)
The bottom line
#A Kenyan court threw out a late land review application and refused a stay, warning that once judgment is delivered, a court's power ends.
What this practically means
#Executive summary
#Key legal issues
#Whether there was inordinate delay in filing the application for review
The application filed on 14th May, 2019, five months after the judgment of 11th December, 2018, was made after inordinate delay, contrary to the requirement under Order 45 that review applications be made without reasonable delay
Order 45 Rule 1 requires an aggrieved person desiring review to apply to the court which passed the decree without reasonable delay. The judgment sought to be impugned was delivered on 11th December, 2018, yet the application was not filed until 14th May, 2019, a period of five months. The court held this constituted inordinate delay, which by itself disentitled the applicant to the discretionary relief of review.
Whether the applicant established grounds for review under Order 45 Rule 1 and 2 of the Civil Procedure Rules
No grounds for review were established; there was no new and important matter or evidence, no mistake or error apparent on the face of the record, and no other sufficient reason
The court set out the grounds in Order 45 Rule 1 and 2 and tested the applicant's case against them. The only substantive ground advanced was that the Land District Tribunal lacked jurisdiction over title to land, but that argument was available at the time of the original proceedings and was not new matter. Nothing in the affidavit demonstrated an error apparent on the face of the record or any other sufficient reason, so the review jurisdiction was not engaged.
Whether stay of execution could be granted in the circumstances
Stay of execution could not be granted because the substantive application for review had been dismissed
The stay of execution sought was consequential upon the review application. Once the court summarily dismissed the application under Order 45 Rule 3(1), there was no live application upon which stay could be anchored. The court accordingly declined to consider the stay or any other order sought, declared itself functus officio, and dismissed the application in its entirety.
Legal principles established
#- An application for review must be made without reasonable delay and must demonstrate discovery of new and important matter, an error apparent on the face of the record, or any other sufficient reason under Order 45 Rule 1 of the Civil Procedure Rules
- A court that has delivered judgment becomes functus officio and cannot entertain collateral relief once the application before it is dismissed
Court orders
#- 1.The application dated 14th May, 2019 is summarily dismissed in terms of Order 45 Rule 3(1) of the Civil Procedure Rules
- 2.No order as to costs
- Jurisdiction invoked
- Inherent review jurisdiction under Order 45 Rules 1, 2 and 3(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Borana Kiara v Bilista Kambura Miriti (Representing the Estate of Adelina Gaaji Magiri (Deceased) [2019] KEELC 3233 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3233/eng@2019-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.