Stanley Kimanyano Kikuyu v Zebeon Makonge [2020] KEELC 46 (KLR)
The bottom line
#A Kakamega court refused to reopen a 2018 land judgment, ruling that delay and absence of a clear legal error cannot justify review.
What this practically means
#Executive summary
#Key legal issues
#Whether the requirements for review under Order 45 Rule 1 and Section 80 of the Civil Procedure Act were met
They were not; no error apparent on the face of the record, no new and important matter, and no other sufficient reason was demonstrated.
The court recited the statutory grounds for review under Order 45 Rule 1(b) and Section 80 of the Civil Procedure Act and the authorities on the self-evident error threshold. It found the court had satisfied itself that the applicant was properly served before proceeding ex parte, so no mistake or omission by the court arose. The alleged false affidavit by the process server and duplicity did not amount to a ground for review.
Whether the delay in bringing the application over one year after judgment affected its merit
The delay of over one year between judgment and the application constituted inordinate delay, weighing against review, which must be sought without unreasonable delay.
The court compared the date of judgment (20th September 2018) with the filing date of the application (20th December 2019) and found a delay of over one year. Since Order 45 requires an application for review to be made without unreasonable delay, this inordinate delay independently undermined the application.
Legal principles established
#- A review may only be granted to correct an error or omission apparent on the face of the record that is self-evident and does not require elaborate argument; a different possible view of the matter or an alleged erroneous conclusion of law is not a ground for review.
- The relief of review is unavailable once an appeal has been preferred against the order, as the court whose order is appealed from cannot interfere with it.
- The court's discretion under Section 80 of the Civil Procedure Act to review its own decision must be exercised judiciously and not capriciously, upon sufficient reason being shown.
Court orders
#- 1.The application dated 19th December 2019 is dismissed
- 2.No orders as to costs, the application having been undefended
- Jurisdiction invoked
- Order 45 rules 1 and 2 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stanley Kimanyano Kikuyu v Zebeon Makonge [2020] KEELC 46 (KLR)", Case Analysis (2020). ELC Case; application dated 19th December 2019 (arising from Kakamega High Court ELC Case No. 317 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/46/eng@2020-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.