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ELCDismissedNot stated in the judgment (Notice of Motion dated 12th November, 2019)· [2020] KEELC 1821 (KLR)

Mary Muthoni Ngari v Joseph Ngari Kamau & 6 others [2020] KEELC 1821 (KLR)

Environment and Land Court
19 June 2020
2,273 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to rewrite a land judgment because review only fixes obvious errors, not decisions a party simply dislikes.

What this practically means

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Executive summary

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This was a Notice of Motion dated 12th November 2019 by the plaintiff, Mary Muthoni Ngari, seeking review and/or amendment of holding No. 3 of the Environment and Land Court's judgment and decree dated 18th October 2019 in a land dispute. Holding No. 3 had ordered that upon cancellation of two titles, the land revert to the name of the deceased, Joseph Ngari Kamau, to be shared equally between the plaintiff and the 2nd defendant. The applicant, through her advocate, sought substitution of that holding with an order directing the District Land Registrar Kirinyaga to issue new titles of five acres each directly to the plaintiff and the 2nd defendant, arguing that otherwise a succession cause would be necessitated, which would be expensive and time consuming. The respondents opposed, contending there was no error apparent on the face of the record, no newly discovered matter (the deceased had died during the pendency of the suit and the claim against him was withdrawn with the applicant's knowledge), and that granting the application would amount to the court sitting on appeal over its own decision, particularly with a stay application pending in the Court of Appeal. The court, E.C. Cherono, ELC Judge, considered Section 80 of the Civil Procedure Act and Order 45 Rule 1 CPR and the authorities on error apparent on the face of the record. It found that the applicant's grievance was based on arguments and/or correction of an erroneous view, not a patent error, and that review could not be used to re-open the case. The application was dismissed with no order as to costs on 19th June 2020 at Kerugoya.

Key legal issues

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01

What constitutes an error apparent on the face of the record for purposes of review

Holding

The applicant's complaint that the judgment would necessitate a succession cause is not an error apparent on the face of the record but a disagreement with an erroneous view, which is a matter for appeal

Reasoning

The court adopted the test in Nyamogo & Nyamogo v Kogo that only a patent, self-evident error which requires no elaborate argument qualifies. The applicant's ground rested on the inconvenience of a succession cause, i.e. arguments and/or correction of an erroneous view taken by the Court. Such grievances fall on appeal, not review under Order 45 Rule 1 CPR.

p. 3
02

Whether the death of the 1st defendant during the pendency of the suit and the need to avoid a succession cause constitute 'new and important matter' or 'other sufficient reason' for review

Holding

No - the death was known to the applicant during the hearing and the prospect of succession proceedings is not a ground for review

Reasoning

The respondents showed the deceased died on 6th November 2016 while the suit was ongoing and the claim against him was withdrawn with the applicant's counsel's knowledge. The death was therefore not new matter discovered after the decree, nor could the convenience of avoiding succession proceedings constitute 'other sufficient reason'. Review may not be used to re-open or re-hear the case.

p. 2
03

Whether the court can vary its own judgment so as to sit on appeal over itself

Holding

A court cannot, on review, change its decision; that would amount to sitting on appeal of its own decision

Reasoning

Relying on the respondents' submissions and the Evan Bwire v Andrew Nginda authority, the court held that Order 45 CPR does not allow a party to ask the court to change its judgment; review is confined to correction of patent error, not re-determination of issues already decided. The applicant failed to bring herself within any of the three statutory grounds.

p. 3

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a mere erroneous decision or wrong view is a ground for appeal, not review
  • An application for review will only be allowed on very strong grounds, particularly where its effect would be to re-open the case

Court orders

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  1. 1.The Notice of Motion dated 12th November 2019 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 99
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 45 Rule 1(1)(a) and (b)

Cases cited (3)

  • Nyamogo & Nyamogo Vs Kogo
    (2001) E.A. 170
  • Aljit Kumar Rath Vs State of Orisa & others
    9 Supreme Court Case 596 at Page 608
  • Evan Bwire Vs Andrew Nginda
    (supra)
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review of judgment/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, "Mary Muthoni Ngari v Joseph Ngari Kamau & 6 others [2020] KEELC 1821 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 12th November, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1821/eng@2020-06-19

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