Bikhabai Muthabai Patel & 2 others v Maccu Motors Limited & 11 others [2021] KEELC 2364 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 2nd Defendant established an error apparent on the face of the record under Order 45 Rule 1
No - each of the four grounds requires lengthy reasoning and amounts at best to grounds of appeal; the review application fails
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.
Whether the alleged filing of an appeal barred the review application
The point was not determined because the Plaintiffs produced no notice or memorandum of appeal to substantiate the allegation
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.
Legal principles established
#- 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
#- 1.The application for review is dismissed
- 2.Costs of the application to be borne by the 2nd Defendant/Applicant
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act, Cap 21 and Order 45 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.