Samuel Njeru M’uthi & another v Depak Kamani & 7 others; Ye Land Company Limited (Proposed Intereested Party) [2021] KEELC 428 (KLR)
The bottom line
#The Eldoret Environment and Land Court dismissed both a land review application and an injunction request, ruling that complaints about a judge's reasoning belong in an appeal, not a review.
What this practically means
#Executive summary
#Key legal issues
#Whether a party who has filed a Notice of Appeal can pursue review
The application is not incompetent; the five-judge bench decision in Multichoice (Kenya) Ltd clarified that a litigant may pursue review despite an unwithdrawn Notice of Appeal.
The court noted contradictory authorities: three-judge bench in Otieno Ragot (31st January 2020) held a notice of appeal barred review, but the five-judge bench in Multichoice (22nd May 2020) settled the confusion, holding review may proceed. The later, larger bench position governed.
Whether there was an error apparent on the face of the record warranting review
No error apparent on the face of the record was demonstrated; the complaints were grounds of appeal, not review.
The Applicant's grievances were alleged erroneous and contradictory findings. Citing Jameny Mudaki Asava and Nyamogo & Nyamogo, the court held misconception of law or evidence is a ground of appeal, not review; reviewing would amount to sitting on appeal over its own decision.
Whether Zamina Properties Limited established a prima facie case for injunction
No prima facie case with probability of success was demonstrated on the documents vis-à-vis the responding affidavits.
Applying Giella and Mrao as bounded by Nguruman, the court found the documents did not show an apparent infringement of a right. The responding affidavits demonstrated the title chain relied on by the Applicant was questionable, the selling company could not have owned the property before incorporation, and the reasons were left for the full hearing.
Whether damages would be an adequate remedy
Yes; the suit property is capable of valuation and the 3rd Defendant in ELC 92 of 2015 has been in possession since 2015, so an injunction would amount to eviction, which is not the function of an interlocutory injunction.
The court held the property can be valued and compensation in damages is available, including demolition of structures if ownership is ultimately established. Granting the injunction would effectively evict the party in possession, which is improper at the interlocutory stage.
Legal principles established
#- An erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal.
- The filing of a Notice of Appeal is not a bar to pursuing an application for review, as clarified by a five-judge bench of the Court of Appeal.
- In considering a prima facie case for injunction, the court does not hold a mini trial nor examine the merits closely.
Court orders
#- 1.The Notice of Motion dated 27th October 2020 seeking review of the ruling of 8th October 2019 is dismissed with costs
- 2.The Notice of Motion dated 14th December 2020 seeking a temporary injunction over LR No. 209/12261 (I.R. 123523) is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction to review its own ruling and jurisdiction to grant interlocutory injunctions in land disputes (Civil Procedure Act / ELC Act, provisions not specified in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Njeru M’uthi & another v Depak Kamani & 7 others; Ye Land Company Limited (Proposed Intereested Party) [2021] KEELC 428 (KLR)", Case Analysis (2021). ELC 92 of 2015 (Ruling on Notices of Motion dated 27th October 2020 and 14th December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/428/eng@2021-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.