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ELCDismissedHCCC No. 124 of 1997 (consolidated with HCCC No. 7 of 2004) - Notice of Motion dated 14th October 2019· [2021] KEELC 2364 (KLR)

Bikhabai Muthabai Patel & 2 others v Maccu Motors Limited & 11 others [2021] KEELC 2364 (KLR)

Environment and Land Court
28 July 2021
3,455 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Garissa dismissed a bid to review a land judgment, confirming that disagreements with a decision belong on appeal, not review.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Garissa on a Notice of Motion dated 14th October 2019 by Time Karimi Yusuf, the substituted 2nd Defendant, seeking review of the judgment delivered on 3rd June 2019. In that judgment the court found that the Plaintiffs had proved ownership of Meru Municipality Block 11/50 under a certificate of lease, allowed their claim with costs, and dismissed the Defendants' defence and counterclaim, including the 2nd Defendant's counterclaim in HCCC No. 7 of 2004 consolidated with HCCC No. 124 of 1997. The Applicant sought review on four grounds: determination and allowance of her counterclaim; an order that the court-appointed receiver pay her Ksh. 20,400,000 collected between June 2002 and June 2019; and two grounds relating to costs. She relied on an alleged error apparent on the face of the record under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. The Plaintiffs and the official receiver opposed, contending the application was an appeal in disguise; the receiver denied collecting any rents, asserting the Applicant herself collected them contrary to court directions. The court applied the settled principles that review lies only for discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and that an error apparent must be self-evident without long-drawn reasoning. It held that all four grounds called for lengthy reasoning, were at best erroneous decisions or misapprehensions of law correctable on appeal, and disclosed no error apparent on the face of the record. The application was dismissed with costs to the 2nd Defendant/Applicant.

Key legal issues

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01

Whether the 2nd Defendant established an error apparent on the face of the record under Order 45 Rule 1

Holding

No - each of the four grounds requires lengthy reasoning and amounts at best to grounds of appeal; the review application fails

Reasoning

The court set out the three grounds for review under Order 45 Rule 1 and the principles from Muyodi, Nyamogo & Nyamogo, Boniface Byanyima and Apollo Mboya: an error apparent must be manifest and self-evident, not a matter on which two opinions are conceivable. The Applicant's grounds - reconsideration of her dismissed counterclaim, the destination of rents collected, and the costs order - all require drawn-out argument and are properly the province of appeal.

p. 5
02

Whether the alleged filing of an appeal barred the review application

Holding

The point was not determined because the Plaintiffs produced no notice or memorandum of appeal to substantiate the allegation

Reasoning

The court noted that a review becomes inaccessible where an appeal has been preferred, but observed that although the Plaintiffs asserted an appeal had been lodged, they filed no notice of appeal or memorandum of appeal in support. The court therefore did not rest its dismissal on that ground, proceeding instead to consider the merits under Order 45 Rule 1.

p. 3

Legal principles established

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  • An erroneous conclusion of law or evidence is a ground for appeal, not for review
  • An error apparent on the face of the record must be self-evident and not require long-drawn reasoning; where two opinions are possible, review does not lie

Court orders

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  1. 1.The application for review is dismissed
  2. 2.Costs of the application to be borne by the 2nd Defendant/Applicant

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 80
  • Civil Procedure Rules, 2010Order 45 Rule 1

Cases cited (15)

  • Muyondi (Muyodi) Vs Industrial and Commercial Development Corporation & Another
    [2006] 1 EA 243
  • Samuel Obonyo Mududa Vs Warera Gnofnah
    [2013] eKLR
  • Nyamogo & Nyamogo Advocates Vs Kogo
    [2011] E.A / (2001) EA 174
  • Middle East Bank Kenya Limited Vs Thalia Katia Maria Castanha
    [2016] eKLR
  • Mistry Valji Vs Janendra Raichand & 2 Others
    [2016] eKLR
  • Amritlal Bhamji Davda Vs Abdi Ahmed & 2 Others
    (1987) eKLR
  • Kenya Sugar Board Vs Ndung'u Gathinji
    (2013) eKLR
  • Paul Mwaniki Vs National Hospital Insurance Fund Board of Management
    [2020] eKLR
  • Attorney General & O'rs Vs Boniface Byanyima
    HCMA No. 1789 of 2000
  • Levi Outa Vs Uganda Transport Company
    {1995} HCB 340
  • Republic Vs Advocates Disciplinary Tribunal Ex-parte Apollo Mboya
    [2019] eKLR
  • Pancras T. Swai Vs Kenya Breweries Limited
    [2014] eKLR
  • Francis Origo & another Vs Jacob Kumali Mugala
    C.A Civ Appeal No. 149 of 2001
  • National Bank of Kenya Ltd Vs Ndungu Njau
    {1996} KLR 469
  • Stephen Gathua Kimani Vs Nancy Wanjira Waruingi t/a Provident Auctioneers
    [2016] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act, Cap 21 and Order 45 Rule 1 of the Civil Procedure Rules, 2010

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, "Bikhabai Muthabai Patel & 2 others v Maccu Motors Limited & 11 others [2021] KEELC 2364 (KLR)", Case Analysis (2021). HCCC No. 124 of 1997 (consolidated with HCCC No. 7 of 2004) - Notice of Motion dated 14th October 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2364/eng@2021-07-28

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