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ELCDismissedNotice of Motion Application dated 25th August 2020 (Nairobi HCCC 648 of 2003 matter)· [2021] KEELC 1782 (KLR)

Samuel Uiru v George Mburu [2021] KEELC 1782 (KLR)

Environment and Land Court
30 September 2021
1,214 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to review its own judgment, confirming that unhappy litigants must appeal, not seek review.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Samuel Uiru, brought a Notice of Motion dated 25th August 2020 under Order 45 Rules 1, 2, 3 and 5 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking review and/or setting aside of the judgment delivered on 23rd July 2020, directions on rehearing, and costs. The underlying dispute concerned Land Parcels Kiambaa/Ruaka/2448 and 2446, registered as joint proprietors pursuant to a judgment in Nairobi HCCC 648 of 2003. The earlier judgment had declined to sever the joint tenancy, holding that partition of common-tenancy land falls within the powers of Registrars under Section 94 of the Land Registration Act. The Defendant did not enter appearance or respond. The applicant argued there was an error apparent on the face of the record, submitting that severance of joint proprietorship under Section 91(7) requires both proprietors to execute Form LRA-37 and that Section 94 provides no corresponding provision for severance of joint proprietorship. The Court identified three issues: whether review was deserved, whether there was an error apparent on the face of the record, and whether sufficient reason existed. Applying Order 45 Rule 1, Daniel Macharia Karagacha v Monicah Watithi Mwangi and Nyamogo & Nyamogo v Kogo, the Court found no new and important matter or evidence, no pinpointed error apparent on the record, and no sufficient reason; seeking review amounted to asking the Court to sit on its own appeal, and the proper remedy was an appeal. The application was dismissed entirely with no orders as to costs.

Key legal issues

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01

Whether the applicant established grounds for review under Order 45 Rule 1 of the Civil Procedure Rules

Holding

The application failed; no new and important matter, no error apparent on the face of the record, and no sufficient reason was demonstrated to warrant review of the judgment of 23rd July 2020

Reasoning

Order 45 Rule 1 permits review upon discovery of new and important matter or evidence not producible earlier, an error apparent on the face of the record, or other sufficient reason. The applicant admitted the position under Section 94 of the Land Registration Act before judgment and pinpointed no error. Seeking review on a point he could have argued at trial is in effect an appeal against the court's own judgment, which review jurisdiction does not permit. The discretion under Section 3A had to be exercised judiciously.

p. 2
02

Whether there was an error apparent on the face of the record regarding severance of joint proprietorship under the Land Registration Act

Holding

No error apparent was established; the applicant failed to pinpoint any such error on the face of the record

Reasoning

The applicant argued that Section 94 of the Land Registration Act allows owners in common to apply for partition and that severance of joint proprietorship under Section 91(7) requires both proprietors to execute a Form LRA-37, contending the judgment contained an error apparent on the face of the record. Applying Nyamogo & Nyamogo v Kogo, an error apparent must stare one in the face without room for two opinions; a mere erroneous decision or an arguable alternative view is not such an error and is a matter for appeal.

p. 2

Legal principles established

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  • An application for review seeking to have a court revisit its own judgment on matters that could have been litigated at trial amounts to asking the court to sit on its own appeal
  • Where a party is dissatisfied with a judgment, the proper recourse is an appeal rather than an application for review

Court orders

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  1. 1.The Plaintiff's/Applicant's Notice of Motion Application dated 25th August 2020 is dismissed entirely
  2. 2.No orders as to costs
Jurisdiction invoked
Order 45 Rules 1, 2, 3, 5 of the Civil Procedure Rules and Section 3A 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, "Samuel Uiru v George Mburu [2021] KEELC 1782 (KLR)", Case Analysis (2021). Notice of Motion Application dated 25th August 2020 (Nairobi HCCC 648 of 2003 matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1782/eng@2021-09-30

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