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ELCOtherNot stated in judgment (Notice of Motion dated 26/3/2019)· [2020] KEELC 1544 (KLR)

Beige Investments Limited v Chief Land Registrar & 2 others [2020] KEELC 1544 (KLR)

Environment and Land Court
28 May 2020
KBK. Bor
656 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By a notice of motion dated 26/3/2019, the Plaintiff sought review of the court's judgment of 26/2/2019, which had dismissed the suit for lack of evidence of a caveat registered against L.R. No. 27/114, and sought damages from the 3rd Defendant for wrongful sustenance of the caveat. The Plaintiff, through the affidavit of Simon Kagwanja Thuo, explained that its advocate inadvertently failed to exhibit the caveat in the pleadings, and annexed the caveat dated 12/5/2015, a certificate of postal search confirming its existence, the 3rd Defendant's determination of the underlying dispute, and a search of the suit land done on 22/3/2019. The Attorney General, for the 2nd and 3rd Defendants, opposed the application in grounds dated 10/2/2020, contending the Plaintiff was improperly introducing new evidence not adduced at pretrial. At the hearing on 26/5/2020, counsel for the 1st and 2nd Defendants confirmed the existence of the caveat and disclosed related proceedings in ELC Suit No. 78 of 2019 before Okong'o J, concerning ownership of the Suit Property. The court found it uncontroverted that no evidence of the caveat was before it at judgment and that a caveat existed. Invoking Order 45 Rule 1, it set aside the judgment of 26/2/2019 and directed that the suit seeking lifting of the caveat be heard by Okong'o J alongside ELC Case No. 78 of 2019. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether a review lies where newly presented evidence shows a caveat existed which was not exhibited in the original hearing

Holding

Yes; the judgment was set aside because evidence confirmed a caveat was registered against the Suit Property at the material time

Reasoning

The court noted it was not contested that no evidence of the caveat was before it when judgment was delivered, nor that a caveat was in fact registered. The affidavit annexed the caveat dated 12/5/2015 and a certificate of postal search confirming its existence. This constituted sufficient reason under Order 45 Rule 1 to set aside the judgment and allow the suit to be heard on its merits.

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02

Whether the suit should be transferred to Okong'o J handling ELC Suit No. 78 of 2019

Holding

Yes; for efficiency all issues relating to the Suit Property should be heard by Okong'o J alongside ELC Case No. 78 of 2019

Reasoning

The court was informed that ELC Suit No. 78 of 2019 concerns ownership of the Suit Property and that the Plaintiff in that suit caused the caveat to be registered. To save judicial time and dispose of all issues relating to the Suit Property efficiently, the lifting of the caveat suit was directed to be heard alongside that case.

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Legal principles established

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  • Order 45 Rule 1 of the Civil Procedure Rules confers discretion on the court to review its orders or decree on the grounds set out therein and any other sufficient reason

Court orders

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  1. 1.The court's judgment delivered on 26/2/2019 set aside
  2. 2.The suit seeking the lifting of the caveat against the suit land to be heard by Okong'o J alongside ELC Case No. 78 of 2019
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules (discretion to review its orders or decree)

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, "Beige Investments Limited v Chief Land Registrar & 2 others [2020] KEELC 1544 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 26/3/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1544/eng@2020-05-28

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