Samuel Uiru v George Mburu [2021] KEELC 1782 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant established grounds for review under Order 45 Rule 1 of the Civil Procedure Rules
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
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.
Whether there was an error apparent on the face of the record regarding severance of joint proprietorship under the Land Registration Act
No error apparent was established; the applicant failed to pinpoint any such error on the face of the record
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.
Legal principles established
#- 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
#- 1.The Plaintiff's/Applicant's Notice of Motion Application dated 25th August 2020 is dismissed entirely
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.