Mackenzie & 5 others v Mackenzie (Environment and Land Case Civil Suit 24 of 2017) [2019] KEELC 3305 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Defect of the application under Order 9 Rule 9
The application by Messrs Mwangangi & Associates was fatally defective because no notice of change of advocates was filed as required under Order 9 Rule 9
The Plaintiffs first filed the plaint in person, then through R. M. Mutune & Co. Advocates. Mwangangi & Associates filed the application without any application for leave with notice to all parties or consent as Order 9 Rule 9 mandates. That the court had entertained the application earlier could not cure the defect, and unlike the Gachuri petition case, there was no notice of change to regularise.
Whether new and important matter justified review under Order 45 Rule 1
No review was warranted; the green cards and the affidavit of Anthony Muyale Mbindyo were obtainable before trial with due diligence and the evidence would not accord with the pleadings
The court accepted the 1st Defendant's submission that the documents and witness were always within the Plaintiffs' reach before they prosecuted their case. Review requires discovery of matter which after due diligence could not be produced. Further, evidence must support pleadings, per the authorities cited, and the Plaintiffs' proposed evidence did not.
Distinction between review and appeal
An erroneous view of evidence or law is not a ground for review; correcting it lies on appeal, and review cannot be used as a second bite at the cherry
Relying on National Bank of Kenya v Ndungu Njau, Francis Origo v Jacob Kumali Mungala and Abasi Belinda v Frederick Kangwamu, the court held that conscious decisions reached after exercising discretion are matters for appeal, not review, otherwise the court would sit in appeal over its own judgment.
Legal principles established
#- A party who engages an advocate after judgment must effect the change only upon a court order with notice to all parties or by filed consent, and breach renders the subsequent application fatally defective
- An erroneous conclusion of law or evidence is a ground for appeal, not review; allowing such a review would amount to the court sitting in appeal over its own decision
Court orders
#- 1.The notice of motion application dated 9th August, 2018 is dismissed
- 2.Costs of the application awarded to the 1st Defendant/Respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act (Cap 21), Order 45 Rules 1, 2, 3 and 5 of the Civil Procedure Rules 2010 and Section 3 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mackenzie & 5 others v Mackenzie (Environment and Land Case Civil Suit 24 of 2017) [2019] KEELC 3305 (KLR)", Case Analysis (2019). Not stated in the judgment extract (ELC suit at Makueni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3305/eng@2019-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.