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ELCDismissedNot stated in excerpt· [2019] KEELC 4535 (KLR)

Sammy Akifuma & another v Kaposhi Njoroge Nakumania & 3 others [2019] KEELC 4535 (KLR)

Environment and Land Court
21 February 2019
COChristine Ochieng
1,636 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to upgrade a small refund award to today's land values, ruling the plaintiffs should have appealed instead.

What this practically means

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Executive summary

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The Plaintiffs' Notice of Motion dated 8th August 2018 sought review and variation of the judgment of 16th April 2018 which had awarded them Kshs. 120,000 being the refund of the purchase price of 60 acres bought in 1990 from the 1st and 2nd Defendants at Kshs. 2,000 per acre. The Plaintiffs argued this figure reflected 1990 values and sought the current monetary equivalent of the land, alleging an error apparent on the face of the judgment, supported by a valuation report of Isaac Wirunda dated 20th July 2018 valuing the land at Kshs. 1,500,000 per acre. The 2nd Defendant opposed, contending that the Plaintiffs had elected to appeal (a Notice of Appeal dated 21st May 2018 remained unwithdrawn), that no error appeared on the face of the judgment since the law requires refund of the purchase price paid at the time of the transaction, and that the valuation was unreliable because the Plaintiffs never took possession, the land had been subdivided and developed, and the report postdated the judgment. The court framed a single issue: whether the judgment should be reviewed to award the current monetary equivalent of the 60 acres. Relying on Muyodi v ICDC and Nyamogo & Nyamogo vs Kogo, the court held the alleged errors required long-drawn reasoning and were not apparent errors, a possible view in the original judgment being no ground for review. The post-judgment valuation report failed the review threshold per Rose Kaiza, and the subsisting appeal barred review under Section 80 of the Civil Procedure Act and Order 45 rule 1(1). The application was dismissed with costs to the Respondents, dated and delivered at Kajiado on 21st February 2019.

Key legal issues

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01

Whether an error apparent on the face of the judgment existed to justify review of the Kshs. 120,000 award

Holding

No error apparent on the face of the record existed; the alleged errors required long-drawn reasoning and the original award was a possible view, remediable only on appeal.

Reasoning

The court applied Muyodi v ICDC, distinguishing a mere erroneous decision from an error apparent on the face of the record. The Kshs. 2,000 per acre computation was a possible view, and alleged errors derived from reasoning on the judgment and the Applicant's opinion rather than an error staring the court in the face. Such matters are for appeal, not review.

p. 2
02

Whether the post-judgment valuation report qualified as new and important matter for review

Holding

The valuation report dated 20th July 2018, prepared three months after judgment, did not meet the review threshold.

Reasoning

The report was prepared after judgment and Isaac Wirunda had not been lined up as a witness at trial. Following Rose Kaiza, a party seeking review must show no remissness in adducing all possible evidence at the hearing; presenting a fresh valuation after judgment is such remissness. Further, the Plaintiffs' lodged but unwithdrawn appeal undermined the review application under Section 80(a).

p. 2

Legal principles established

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  • An error apparent on the face of the record must stare one in the face such that there could reasonably be no two opinions; an error requiring long-drawn reasoning or on which two opinions are conceivable is not a ground for review.
  • New evidence produced after judgment (a valuation report prepared three months after judgment) does not meet the threshold for review where there was remissness in adducing evidence at the hearing.

Court orders

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  1. 1.The Notice of Motion dated 8th August, 2018 is disallowed as unmerited
  2. 2.Costs awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 rule 1(1)

Cases cited (5)

  • Emily Chonge Wanyama V Patrick Mangeni Yusto
    (2014) eKLR
  • Kwanza Estate vs Dubai Bank Limited
    Mombasa High Court Civil Suit No. 44 of 2013
  • Muyodi v Industrial and Commercial Development Corporation and Another
    EALR (2006) EA 243
  • Nyamogo & Nyamogo vs Kogo
    (2001) EA 174
  • Rose Kaiza Vs Angelo Mpanju Kaiza
    (2009) eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1(1) of the Civil Procedure Rules (review jurisdiction)

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, "Sammy Akifuma & another v Kaposhi Njoroge Nakumania & 3 others [2019] KEELC 4535 (KLR)", Case Analysis (2019). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4535/eng@2019-02-21

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