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ELCDismissed· [2019] KEELC 3916 (KLR)

Musyoka Mutie Makau v Munyao Mutie Makau & another [2019] KEELC 3916 (KLR)

Environment and Land Court
27 March 2019
1,593 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan land court threw out the Defendants' bid to revive a lost land case because they waited too long and had already tried to appeal.

What this practically means

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Executive summary

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The Defendants filed an Amended Notice of Motion dated 18th December, 2014 seeking review and setting aside of the court's Ruling of 29th May, 2012, the interlocutory Judgment entered on 6th July, 2011, and the ex-parte Judgment of 7th November, 2012 (which issued a mandatory injunction compelling them to vacate the suit land), together with leave to file a Defence. They argued that the Plaint and Verifying Affidavit were prepared by Jacob Ngwele, an unqualified person without a professional indemnity cover; that the judge lacked jurisdiction; that they were never served with a hearing notice of the formal proof; and that the Plaintiff, who was not the administrator of the Estate of Mutie Makau, lacked locus, having also failed to disclose that the Machakos District Land Disputes Tribunal award had been quashed by the High Court. Angote J applied Order 45 Rule 1 of the Civil Procedure Rules and dismissed the application. The court held that having filed a Notice of Appeal against the Ruling of 29th May, 2012 (which the Court of Appeal struck out on 25th July, 2014 for being out of time), the Defendants could not seek review of the same Ruling. The review of the Judgment of 7th November, 2012, filed two years later and after execution was completed, constituted unreasonable delay. Further, the grounds raised - lack of jurisdiction, the advocate's qualifications and non-service - were appealable matters, not grounds for review, and the record showed the advocate held a valid practising certificate. The application was dismissed with costs and the matter marked finalized.

Key legal issues

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01

Whether the Defendants could seek review after having filed a Notice of Appeal against the Ruling

Holding

The right to review the Ruling was extinguished once the Defendants filed a Notice of Appeal, which was later struck out

Reasoning

Order 45 review is available to a person aggrieved by a decree or order from which no appeal has been preferred. The Defendants filed a Notice of Appeal against the Ruling of 29th May, 2012 on 4th June, 2012, which the Court of Appeal struck out on 25th July, 2014 for being out of time. Having elected to appeal, they could not return to the trial court for review of the same Ruling.

p. 2
02

Whether the application for review of the Judgment of 7th November, 2012 was filed without unreasonable delay

Holding

The application, filed two years after judgment and after execution was complete, was unreasonably delayed

Reasoning

Order 45 requires an application for review to be made without unreasonable delay. The Judgment was delivered on 7th November, 2012, was never appealed against, and the review application was filed on 18th December, 2014 - two years later and after the Plaintiff had completed execution. The court held this delay took away the right to review.

p. 2
03

Whether the grounds raised (lack of jurisdiction, unqualified advocate without indemnity cover, non-service of hearing notice) are grounds for review

Holding

Those grounds can only form a basis of an Appeal and not a Review; and there was no evidence the advocate lacked a valid practising certificate

Reasoning

The court held that complaints about jurisdiction, the plaintiff's advocate being an unqualified person, and non-service of a hearing notice are matters for appeal, not review. On the indemnity cover point, the record showed the advocate was an advocate of the High Court with a valid practising certificate, and no law was pointed out prohibiting an advocate with a practising certificate from filing pleadings for want of professional indemnity cover. The alleged non-service of the hearing notice and the alleged misleading of the court were also appealable issues.

p. 2
04

Whether the quashing of the Machakos District Land Disputes Tribunal award and the Plaintiff's alleged lack of locus justified review

Holding

The issue of the Plaintiff having misled the trial court on these matters should have been taken on Appeal and cannot be a subject of review

Reasoning

The Defendants argued the Plaintiff failed to disclose that the Tribunal award in Case No. 124 of 2002 had been quashed and that he lacked locus as he was not the administrator of the Estate. The court found such allegations of misleading the trial court are matters to be ventilated on appeal, not in a review application.

p. 2

Legal principles established

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  • A party who filed an appeal against a ruling cannot later seek to review the same ruling once the notice of appeal is struck out
  • An application for review filed long after judgment and after execution is completed constitutes unreasonable delay which takes away the right of review
  • An error apparent on the face of the record must be one on which there could reasonably be no two opinions

Court orders

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  1. 1.The Defendants' Notice of Motion dated 18th December, 2014 is dismissed with costs
  2. 2.The matter is marked as having been finalized

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (1)

  • Muyodi vs. Industrial & Commercial Development Corporation & Another
    (2006) 1 EA 243
Jurisdiction invoked
Inherent review jurisdiction under Order 45 Rule 1 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, "Musyoka Mutie Makau v Munyao Mutie Makau & another [2019] KEELC 3916 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3916/eng@2019-03-27

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