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ELCDismissedNot stated in judgment· [2021] KEELC 1090 (KLR)

Josphat Kamau Gatimu & 5 others v Grace Wamuyu Munyua & 2 others [2021] KEELC 1090 (KLR)

Environment and Land Court
22 October 2021
1,464 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 review its earlier ruling, confirming that a losing party cannot use review to re-argue a decision they simply dislike.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the court by Notice of Motion dated 27th April 2021 under Order 51 Rule 1 and Order 45 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A and 1B of the Civil Procedure Act, seeking review of a ruling delivered by Justice E.C. Cherono on 12th March 2021. They contended that the ruling contained an error apparent on the face of the record because it dealt with extension or revival of expired summons, whereas their application dated 13th November 2020 had sought reissuance of summons; as a result, their prayer for reissuance was said to remain unaddressed. The 1st Respondent did not oppose the application and the 2nd Defendant filed nothing in opposition. The court, applying Order 45 Rule 1 and the principles in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, held that review lies only for a patent, self-evident error and cannot operate as an appeal in disguise. It found that the impugned ruling had correctly recorded the applicants' prayer and properly concluded that, since the previous summons had expired on 5th November 2020 and no valid summons existed when the application was filed, it amounted to seeking revival of summons. What the applicants labelled an error was in truth the court's disposition on the law and facts, which could only be established through examination and argument. The application was dismissed with costs on 22nd October 2021 at Kerugoya.

Key legal issues

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01

Whether there was a mistake or error apparent on the face of the record under Order 45 Rule 1

Holding

There was no error apparent; the court had correctly characterised the applicants' application as one for revival of expired summons since no valid summons existed when it was filed

Reasoning

The court noted that its earlier ruling correctly recorded that the applicants sought issuance of summons to enter appearance after the previous summons expired on 5th November 2020. Since no valid summons existed at the time of filing, the court's conclusion that the application amounted to seeking revival of summons was a disposition on the law and facts, not a clerical error. Establishing the alleged error would require examination and argument, disqualifying it from review.

p. 3
02

Whether the applicants' prayer for reissuance of summons was left unaddressed

Holding

It was not unaddressed; the court had analysed the application and concluded it sought revival of expired summons

Reasoning

The court found that upon analysing the law and facts in the application dated 13th November 2020, the prayer for issuance of summons amounted to seeking revival of summons because there were no valid summons at the time of filing. Consequently, the applicants' assertion that their prayer remained unaddressed was factually incorrect.

p. 3

Legal principles established

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  • A review lies only for a patent error that is self-evident from the record; an order cannot be corrected merely because it is erroneous in law or because a different view could have been taken

Court orders

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  1. 1.The Notice of Motion dated 27th April 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure ActSections 1A and 1B

Cases cited (1)

  • Republic Vs Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
Jurisdiction invoked
Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A and 1B of the Civil Procedure Act

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, "Josphat Kamau Gatimu & 5 others v Grace Wamuyu Munyua & 2 others [2021] KEELC 1090 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1090/eng@2021-10-22

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