Mary Wambui Warui & 3 others v John Njama Mwangi & another [2021] KEELC 2571 (KLR)
The bottom line
#The Environment and Land Court in Kerugoya dismissed an attempt to undo earlier orders, confirming that wrong rulings must be challenged on appeal, not by review.
What this practically means
#Executive summary
#Key legal issues
#Correct procedure for setting aside inter-parties orders
The application was misconceived: it invoked Order 8 CPR (amendment of pleadings) for relief that, if at all, lay under Order 45 CPR (review). No ground for review was demonstrated.
The court found none of the prayers related to amendment of the defence. The orders of 13th December 2019 were equitable reliefs issued after hearing all parties. Setting aside or review required demonstration of new and important matter discovered after due diligence, or an error apparent on the face of the record, none of which was shown. An aggrieved party's remedy is appeal, not a request that the court sit on its own appeal.
Effect of the prior judicial review judgment
The judgment in Misc. Civil Application No. 22 of 2013 (J.R.) by Justice Olao could not found the setting aside of this court's orders; that application was dismissed for being filed out of time and did not determine the tribunal's jurisdiction or the merits.
The court held it could not set aside its own orders on the basis of a judgment in a different case before a separate judge. Justice Olao had dismissed the judicial review application as time-barred and did not uphold the tribunal award on its merits.
Substantive reliefs at interlocutory stage
Orders declaring or maintaining ownership of land (prayers 4 and 5) are substantive and cannot be granted before a full hearing of the suit.
The applicants sought final determination of title to parcel MUTITHI/CHUMBIRI/493 and disqualification of the respondents' advocate. The court held such substantive orders could not issue before hearing the merits.
Legal principles established
#- A ruling issued after an inter-parties hearing cannot be set aside or reviewed unless the applicant properly invokes Order 45 CPR and demonstrates discovery of new and important matter, error apparent on the face of the record, or other sufficient reason; otherwise the remedy is appeal.
Court orders
#- 1.The Notice of Motion dated 19th June 2020 is dismissed with costs to the plaintiffs
- Jurisdiction invoked
- Inherent jurisdiction of the ELC under the Civil Procedure Rules (application invoked Order 8 CPR, properly Order 45 CPR for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wambui Warui & 3 others v John Njama Mwangi & another [2021] KEELC 2571 (KLR)", Case Analysis (2021). Notice of Motion dated 19th June 2020 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2571/eng@2021-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.