Mahmoud Abdalla Mohamed & 9 others v Gabriel Katana Kajoj & 8 others [2021] KEELC 482 (KLR)
The bottom line
#A Kenyan land court dismissed property owners' bid to reverse earlier orders, confirming that review applications cannot be used as disguised appeals.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for review under Order 45 was met
No – there was no mistake or error apparent on the face of the record; the ruling of 23rd March 2021 was clear on what status quo was
The court found the ruling of 23rd March 2021 was explicit in restoring the status quo prevailing ante the orders of 9th December 2019. The applicants' argument that the judge 'intended' different orders was rejected as speculation. A party aggrieved by a ruling has a right of appeal, and an erroneous appreciation of law or evidence is not a ground for review. Allowing such use of review would undermine the hierarchy of courts and result in anarchy and disorder.
Whether the plaintiffs are entitled to injunctive relief
No – the injunction claim is res judicata, having been determined in the ruling of 23rd March 2021
The court held that since the application for review lacked merit, the injunction claim, which had already been determined by the ruling of 23rd March 2021 on the application dated 2nd September 2020, failed on account of res judicata under section 7 of the Civil Procedure Act as urged by the 9th defendant.
Legal principles established
#- An erroneous conclusion of law or evidence is not a ground for review but a ground for appeal; review cannot substitute appellate remedies
- Review is restricted to the grounds in Order 45 and must be sought without unreasonable delay
Court orders
#- 1.The application dated 28th July 2021 is dismissed with costs in the cause
- Jurisdiction invoked
- Order 45(1) of the Civil Procedure Rules (review jurisdiction); Section 7 of the Civil Procedure Act (res judicata)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mahmoud Abdalla Mohamed & 9 others v Gabriel Katana Kajoj & 8 others [2021] KEELC 482 (KLR)", Case Analysis (2021). ELC Case (Malindi) – consolidated suits involving L.R No. MN/II/783 (Ruling in ELC Case No.139 of 2015, Malindi cited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/482/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.