Lake Basin Development Authority v Joseph Ochieng [2020] KEELC 168 (KLR)
The bottom line
#A Kisumu court refused to review its earlier decision, confirming that review is not a second chance to reargue a lost case in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant established grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
The application for review is not merited and is dismissed with costs.
The court had dismissed the stay application for unexplained delay of 37 days and failure to demonstrate substantial loss. The Applicant's attempt to recompute the delay from the date the certified ruling was ready (13 days rather than 37 days) did not avail it, because even a sufficient explanation for delay would not cure the failure to demonstrate substantial loss. No new and important matter, no error apparent on the face of the record, and no sufficient reason under Order 45 Rule 1 was shown. The Applicant was merely faulting the court's appreciation of pleadings and evidence, an appellate exercise unsuited to review.
Whether the alleged floodgate of 168 other parcels in the Tonde Settlement Scheme amounted to sufficient cause/public interest warranting review
The public interest/floodgate contention did not establish a ground for review.
The Respondent maintained that the suit concerned only one parcel to which he held a legitimate title deed, and that allegations of a floodgate of cases from other claimants were an overreach. The court found the Applicant had not raised any of the statutory grounds of review - new evidence, error apparent on the record, or sufficient reason - and the floodgate claim did not fit within them.
Legal principles established
#- For an error to be apparent on the face of the record it must be obvious and self-evident and not require elaborate argument to establish.
- In a money decree, substantial loss lies in the inability of the Respondent to refund the decretal sum should the appeal succeed, and the burden of proving this lies on the Applicant.
- Merely stating the existence of an extracted decree or the prospect of execution does not amount to substantial loss.
- A review cannot be used as a fresh hearing or to correct an erroneous view taken earlier; it lies only for correction of a patent error of law or fact which stares one in the face.
Court orders
#- 1.The application for review dated 22nd June 2020 is dismissed
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review of decrees or orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lake Basin Development Authority v Joseph Ochieng [2020] KEELC 168 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/168/eng@2020-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.