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ELCDismissedELC Case of 2018 ( Environment and Land Court, Thika )· [2021] KEELC 894 (KLR)

Josiah Nyika Muia v Jairo Atenya Asitiba [2021] KEELC 894 (KLR)

Environment and Land Court
16 November 2021
BEB M Eboso
2,442 words in judgment
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The bottom line

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A Kenyan court dismissed a bid to review a land judgment, confirming that disagreement with a ruling should be appealed, not reviewed.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (B M Eboso J, delivered virtually at Thika on 16 November 2021) determines a notice of application dated 15 January 2021 in which the plaintiff sought review of the judgment of 15 June 2020 under Section 80 of the Civil Procedure Act and Order 45 rule 1(1)(a) of the Civil Procedure Rules. The original suit concerned property known as Land Reference Number 12666/1 at Villa Imara Development Project, Imara Daima, Nairobi, which the plaintiff had purchased from the defendant. The court permanently restrained the defendant and his agents from collecting rents on the property but declined to grant orders against tenants who were not parties and dismissed the claim for rent of Kshs 60,000 per month as special damages unsupported by evidence, awarding costs to the plaintiff. In the review application, the plaintiff argued that the judgment contained an error apparent on the face of the record because the court had failed to address his claim for refund of rents collected by the defendant, and that, being an undefended suit, he was entitled to all the prayers in the plaint. The defendant opposed, contending the court had dealt with the rent claim and had become functus officio. The court found that paragraph 10 of the judgment had expressly and unequivocally determined the rent claim, dismissing it for want of evidence. Dissatisfaction with that finding was a matter for appeal, not review. The court held that the criteria for review were not met and dismissed the application with costs to be borne by the plaintiff/applicant.

Key legal issues

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01

Whether the court's judgment contained an error apparent on the face of the record warranting review

Holding

The application fails: the court had unequivocally addressed the rent claim in paragraph 10 of the judgment, finding it a special damages claim that failed for lack of evidence, so no error apparent existed and the criteria for review were not met.

Reasoning

The court traced the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules and the requirement of an error apparent on the face of the record. It found the rent claim had been expressly determined, the claim failing as special damages for want of evidence. Dissatisfaction with a finding is a matter for appeal, not a second finding via review.

p. 3
02

Whether an undefended suit entitles a plaintiff to all prayers in the plaint

Holding

No - the court applied the principle that all claims require proof even where undefended; the rent claim failed for lack of evidence.

Reasoning

The defendant submitted that all prayers in a suit are subject to proof and that even an undefended claimant must adduce evidence. This is consistent with the original judgment, which found the rent claim to be special damages requiring proof, at least by a valuer, and dismissed that limb for lack of evidence despite the suit being undefended.

p. 1

Legal principles established

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  • Review is only available where there is an error of law apparent on the face of the record or discovery of new and important matter of evidence which due diligence could not have placed before the court.
  • A party dissatisfied with a court's finding cannot use review to invite the court to render a second finding on the same issue; the remedy is appeal.

Court orders

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  1. 1.The plaintiff's application dated 15/1/2021 is rejected for lack of merit
  2. 2.The plaintiff/applicant shall bear costs of the application
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1(1)(a) of the Civil Procedure Rules

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, "Josiah Nyika Muia v Jairo Atenya Asitiba [2021] KEELC 894 (KLR)", Case Analysis (2021). ELC Case of 2018 ( Environment and Land Court, Thika ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/894/eng@2021-11-16

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