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ELCDismissedNotice of Motion dated 28th April, 2021 (arising from suit over land parcels NORTH MUGIRANGO/BOISANGA/1485, 4361, 4362, 1494 and 1496)· [2021] KEELC 186 (KLR)

Francis Nyauma Obare & 3 others v Maina Marwanga Omwamire & another [2021] KEELC 186 (KLR)

Environment and Land Court
16 December 2021
2,495 words in judgment
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The bottom line

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The Environment and Land Court in Nyamira dismissed a four-year-late attempt to review a land judgment, confirming that execution problems must be raised on appeal, not review.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 28th April, 2021 in which the Defendants/Applicants sought review and/or variation of orders issued on 17th February, 2017 in a land dispute over parcels NORTH MUGIRANGO/BOISANGA/1485, 4361, 4362, 1494 and 1496. In the original suit the Plaintiffs had obtained declarations that the parcels extend to the existing physical boundaries, and orders directing the Land Registrar, Nyamira County to fix boundaries, rectify the registers and amend the Registry Index Map within 180 days, with each party bearing their own costs. When the decree went unimplemented, the Defendants secured a notice to show cause, and a County Surveyor's Report concluded the orders were not implementable. The Defendants then sought review, contending the decree was incapable of execution. Justice Mugo Kamau, sitting at Nyamira, framed the question under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. He held that a complaint that a decree is incapable of execution, or that evidence was mis-analyzed, is a ground for appeal and not for review; that the court is functus officio after judgment; and that review must not become an appeal in disguise. The court further found the application was filed more than four years after the decision without satisfactory explanation, far beyond what the authorities tolerate. The application was dismissed with costs to the Plaintiffs.

Key legal issues

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01

Whether the Surveyor's Report and alleged non-implementability of the decree constitute new and important matter or sufficient reason for review

Holding

No. The complaint that the decree is incapable of execution is a ground for appeal, not review, and sifting through the evidence again would amount to sitting on judgment against a brother judge's judgment.

Reasoning

The court held that review is confined to the statutory grounds in Order 45. The applicants, who were represented by counsel throughout the trial, were essentially seeking to reopen the merits because the Land Registrar reported the orders were not implementable. That grievance lies on appeal. Relying on Menginya Salim Murgani, the court noted it is functus officio after judgment, and that allowing review would send the message that litigation never ends.

p. 3
02

Whether the application was made without unreasonable delay

Holding

No. The decision sought to be reviewed was delivered on 17th February 2017 and the application was filed on 28th April 2021, a delay of more than 4 years for which no satisfactory explanation was given.

Reasoning

Order 45 requires an application for review to be made without unreasonable delay. The court found the delay of over four years unexplained and unreasonable, and observed that even if the substantive grounds had been met, the application would fail on delay alone. It referenced authority that unexplained delay of more than three months in filing for review is unreasonable.

p. 4

Legal principles established

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  • A court becomes functus officio after passing judgment and cannot revisit the judgment on merits save as provided by law
  • A party aggrieved by the perceived errors of a decree that is allegedly incapable of execution must appeal rather than seek review; review cannot be used as an appeal in disguise
  • An application for review must be made without unreasonable delay; unexplained delay of several years is fatal

Court orders

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  1. 1.The Application dated 28/4/21 is dismissed
  2. 2.Costs of the Application awarded to the Plaintiffs
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

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, "Francis Nyauma Obare & 3 others v Maina Marwanga Omwamire & another [2021] KEELC 186 (KLR)", Case Analysis (2021). Notice of Motion dated 28th April, 2021 (arising from suit over land parcels NORTH MUGIRANGO/BOISANGA/1485, 4361, 4362, 1494 and 1496). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/186/eng@2021-12-16

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