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ELCPartially AllowedApplication dated 31/7/2019 in ELC No. 53 of 2009 (formerly RMCC No. 3536 of 1990 / HCCC No. 5982 of 1992)· [2021] KEELC 2245 (KLR)

Cecilia Wanjiru Kamau & another v Geoffrey Thuo Mbira & 3 others [2021] KEELC 2245 (KLR)

Environment and Land Court
29 July 2021
KBK. Bor
1,188 words in judgment
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The bottom line

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Kenya's Environment and Land Court set aside its own judgment because the eviction suit was actually filed within the legal time limit, reviving the landowners' claim.

What this practically means

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Executive summary

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The Plaintiffs applied by notice dated 31/7/2019 for review of the judgment delivered on 30/8/2018, in which the court had dismissed their eviction suit against the Defendants from land reference number Kiambaa/Karuri/T.538 as time-barred, having been filed more than twelve years after the claim arose. The Plaintiffs, joint registered owners since a 1979 purchase from Geoffrey Thuo, argued there was an error apparent on the face of the record because the eviction suit was originally filed in 1990 as Sheria House RMCC No. 3536 of 1990, transferred to the High Court in 1992 as HCCC No. 5982 of 1992, and later became ELC No. 53 of 2009, so limitation was never contravened. The 4th Defendant opposed, contending the seller lacked authority, the 2013 registration was illegal, no service was effected in the earlier proceedings, the matter was res judicata, the court functus officio, and that the Defendants had acquired rights through long occupation amounting to adverse possession. A former Chief of Kiambaa Location swore that elders in 1998 found the seller had no authority to sell. The court, considering Section 80 of the Civil Procedure Act and Order 45 Rule 1, agreed that the exhibited documents showed the initial suit was filed in 1990 and transferred in 1992, establishing an error apparent on the face of the record and that the suit was filed within the limitation period. The court set aside the judgment of 30/8/2018 and ordered the costs of the application to be in the cause.

Key legal issues

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Whether the judgment of 30/8/2018 finding the suit time-barred should be reviewed

Holding

Yes - the judgment was reviewed and set aside because the exhibited documents showed the initial suit was filed in 1990 and transferred in 1992, meaning the suit was filed within the limitation period; there was an error apparent on the face of the record.

Reasoning

The court noted that in the 30/8/2018 judgment it had found the suit statute-barred as filed more than twelve years after the claim arose. On the documents exhibited to the review application, the initial suit was filed in 1990 and an order for transfer to the High Court was made in 1992, and the suit later metamorphosed into ELC No. 53 of 2009. The court therefore accepted the Plaintiffs' submission that the earlier finding on limitation rested on an error apparent on the face of the record within Section 80 and Order 45 Rule 1.

p. 2

Legal principles established

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  • Where a suit was filed in 1990 and ordered transferred to the High Court in 1992, the suit was filed within the limitation period and a judgment treating it as time-barred contains an error apparent on the face of the record warranting review.

Court orders

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  1. 1.The judgement entered on 30/8/2018 is hereby set aside
  2. 2.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 45 Rule 1
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review of the court's own judgment)

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, "Cecilia Wanjiru Kamau & another v Geoffrey Thuo Mbira & 3 others [2021] KEELC 2245 (KLR)", Case Analysis (2021). Application dated 31/7/2019 in ELC No. 53 of 2009 (formerly RMCC No. 3536 of 1990 / HCCC No. 5982 of 1992). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2245/eng@2021-07-29

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