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ELCDismissedNot stated in judgment (Eldoret ELC matter; judgment of Odeny J of 15th October 2014 in the same suit)· [2020] KEELC 840 (KLR)

Eliud Njuguna Mwangi & another v John Kibiwot Kibowen [2020] KEELC 840 (KLR)

Environment and Land Court
29 October 2020
MOM. A. Odeny
3,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiffs/applicants moved the court by an application dated 20th July 2020 seeking, among other things, implementation of Justice Odeny's judgment of 15th October 2014, setting aside or variation of the order implementing the County Surveyor E. Keitany's report dated 31st July 2017, a stay of that implementation, summons to the County Surveyor for cross-examination, and a joint or independent re-survey of parcel Karuna/Sosiani Block 2 (Progressive) 289. They relied on a private surveyor's report by M/s Prestoland Real Estate and Properties Ltd dated 5th March 2020, which allegedly found that the County Surveyor excised 6.58 acres for the defendant instead of the 5.5 acres ordered. The respondent opposed, arguing res judicata on the basis of a ruling delivered on 7th May 2019 in which a similar application dated 18th July 2018 was determined, and contending that no error apparent on the face of the record had been shown as required by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The court framed two issues: whether grounds for review were established and whether the application was res judicata. It held that review is not an appeal and is confined to error apparent on the face of the record; that the applicants' dissatisfaction with the surveyor's expert findings and their after-the-fact engagement of a private surveyor did not amount to new evidence; and that prayers 4, 5, 7, 8 and 9 had already been determined in the 7th May 2019 ruling, rendering the application res judicata and an abuse of process. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicants established a ground for review under Section 80 CPA and Order 45 Rule 1

Holding

No error apparent on the face of the record was demonstrated; the private surveyor's report was not new evidence and the review application was a disguised appeal

Reasoning

The court confined review to the statutory grounds: discovery of new and important matter, error apparent on the face of the record, or other sufficient reason. The parties were present during the survey and resurvey, and the applicants had earlier cross-examined the County Surveyor. Engaging a private surveyor after the fact was an afterthought, and dissatisfaction with the surveyor's findings is at best a ground of appeal, not review.

p. 4
02

Whether the application is res judicata

Holding

Yes - prayers 4, 5, 7, 8 and 9 were substantially determined in the ruling of 7th May 2019 on the application dated 18th July 2018

Reasoning

The identical issues - cross-examination of the County Surveyor and setting aside/review of the order adopting the survey report - were raised, heard and finally determined in the earlier application between the same parties. The applicants, being aggrieved, ought to have appealed rather than file a fresh application, which was an abuse of process.

p. 4

Legal principles established

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  • Review proceedings are not an appeal and must be confined to error apparent on the face of the record; an erroneous conclusion of law or evidence is a ground for appeal, not review
  • The elements of res judicata must be satisfied in conjunctive terms before the bar can be upheld
  • In matters involving survey, the court relies on expert evidence to come to a decision

Court orders

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  1. 1.The application dated 20th July 2020 is dismissed
  2. 2.Costs of the application are awarded to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 45 Rule 1

Cases cited (10)

  • Paul Mwaniki v National Hospital Insurance Fund Board of Management
    [2020] eKLR
  • Nyamongo & Nyamongo vs Kogo
    (2001) EA 170
  • Aribam Tuleshwar Sharma v. Aribam Pishak MSharmal
    (1979) 4 SCC 389: AIR 1979 SC 1047
  • Attorney General vs Boniface Byanyima
    HCMA No. 1789 of 2000
  • Republic vs Public Procurement Administrative Review Board & 2 Others
    [2018] eKLR
  • Evan Bwire V Andrew Aginda
    Civil Appeal No. 147 of 2006
  • Stephen Githua Kimani V Nancy Wanjira Waruingi T/A Providence Auctioneers
    (2016) eKLR
  • Origo & Another V Mungala
    (2005) 2 KLR
  • Jameny Mudaki Asava V Brown Otengo Asava & Another
    (2015) eKLR
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    Nairobi CA Civil Appeal No. 105 of 2017 [2017] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (application for review)

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, "Eliud Njuguna Mwangi & another v John Kibiwot Kibowen [2020] KEELC 840 (KLR)", Case Analysis (2020). Not stated in judgment (Eldoret ELC matter; judgment of Odeny J of 15th October 2014 in the same suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/840/eng@2020-10-29

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