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ELCDismissedNotice of Motion dated 13th July, 2021 (in Eldoret ELC suit)· [2021] KEELC 1168 (KLR)

Reuben Rotich Chelugo v Jerugut Bowen & another [2021] KEELC 1168 (KLR)

Environment and Land Court
8 November 2021
EOE.O. Obaga
788 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Eldoret dismissed a landowner's bid to review an earlier ruling, confirming that disagreements with a judge's findings belong on appeal, not review.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (E.O. Obaga, J) determined a Notice of Motion dated 13th July 2021 in which the Plaintiff/Applicant sought review and/or setting aside of a ruling delivered on 9th March 2021, which had dismissed his application for injunction dated 1st September 2020. The Applicant had filed a Notice of Appeal against that ruling but withdrew it on 13th July 2021 before filing the review application. He advanced two grounds: an error apparent on the face of the record, namely that the trial judge held he had not explained the outcome of Eldoret ELC No. 283 of 2013 when he had done so in his supplementary affidavit; and discovery of new and important evidence, namely a 2009 sale agreement and an acknowledgement of money paid. The Defendants/Respondents opposed, arguing the application was incompetent since an appeal was the proper remedy, the grounds were repetitive, and the estate had already been distributed pursuant to a confirmed grant in Eldoret High Court Succession Cause No. 69 of 2014. The court held that erroneous findings of fact or law are grounds for appeal, not review, and that the sale agreement related to a purchaser in possession before suit was filed, so it could not have been undiscoverable with due diligence. The post-filing acknowledgement of payment likewise could not ground review. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Applicant met the threshold for review of the ruling of 9th March 2021

Holding

The application failed on both grounds - no error apparent on the face of the record and no discovery of new evidence that could not have been obtained with due diligence

Reasoning

The Applicant's complaint was that the trial judge made erroneous findings of fact, which is only a ground for appeal. The alleged new evidence - a 2009 sale agreement and an acknowledgement of money paid - was either known before suit or arose after the injunction application was filed, and thus cannot ground a review. The Applicant lost the injunction application for lack of a prima facie case, and should have pursued the appeal he filed.

p. 2

Legal principles established

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  • Erroneous findings of fact or law by a judge are grounds for appeal, not for review

Court orders

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  1. 1.Application for review dismissed
  2. 2.Costs of the application to the Respondents
Jurisdiction invoked
Inherent review jurisdiction over its own ruling (application for review of ruling delivered 9/03/2021)

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, "Reuben Rotich Chelugo v Jerugut Bowen & another [2021] KEELC 1168 (KLR)", Case Analysis (2021). Notice of Motion dated 13th July, 2021 (in Eldoret ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1168/eng@2021-11-08

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