Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Case; application dated 19th December 2019 (arising from Kakamega High Court ELC Case No. 317 of 2017)· [2020] KEELC 46 (KLR)

Stanley Kimanyano Kikuyu v Zebeon Makonge [2020] KEELC 46 (KLR)

Environment and Land Court
30 April 2020
1,379 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

#

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

#
The applicant, by a notice of motion dated 19th December 2019 brought under Order 45 rules 1 and 2 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Article 159 of the Constitution, sought certification as urgent, a temporary stay of execution of a judgment and decree issued on 20th September 2018, review and setting aside of that judgment with a fresh trial, and the withdrawal and transfer of Hamisi Principal Magistrate's Court ELC No. 16 of 2018 for consolidation with Kakamega High Court ELC Case No. 317 of 2017. The applicant argued that the suit had proceeded ex parte without proper service, on the basis of a false affidavit by a process server, that the suit was duplicative of the pending Hamisi cause, and that the respondent was destroying property on the suit land. The court, N.A. Matheka J, set out the statutory framework for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1(b), and applied the authorities requiring a self-evident error apparent on the face of the record, discovery of new and important matter, or other sufficient reason. The court found the record showed the applicant had been properly served, that no mistake or error on the part of the court was demonstrated, and that the application, filed over a year after judgment, was marked by inordinate delay. The application was dismissed with no orders as to costs, it being undefended.

Key legal issues

#
01

Whether the requirements for review under Order 45 Rule 1 and Section 80 of the Civil Procedure Act were met

Holding

They were not; no error apparent on the face of the record, no new and important matter, and no other sufficient reason was demonstrated.

Reasoning

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.

p. 2
02

Whether the delay in bringing the application over one year after judgment affected its merit

Holding

The delay of over one year between judgment and the application constituted inordinate delay, weighing against review, which must be sought without unreasonable delay.

Reasoning

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.

p. 2

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. 1.The application dated 19th December 2019 is dismissed
  2. 2.No orders as to costs, the application having been undefended

Authorities

#

Legislation

  • Civil Procedure RulesOrder 45 rules 1 and 2
  • Civil Procedure RulesOrder 44 Rule 1
  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 80
  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 3A
  • Constitution of Kenya 2010Article 159

Cases cited (4)

  • Kwame Kariuki & Another Vs. Mohamed Hassan Ali & 4 Others
    [2014] eKLR
  • Mwihoko Housing Company Limited Vs Equity Building Society
    [2007] 2 KLR 171
  • Rose Kaiza Vs Angelo Mpanju Kaiza
    2009
  • National Bank of Kenya Vs Ndungu Njau
    Civil Appeal No. 2111 of 1996
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.