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ELCDismissedNotice of Motion dated 19th June 2020 (suit number not stated in the judgment)· [2021] KEELC 2571 (KLR)

Mary Wambui Warui & 3 others v John Njama Mwangi & another [2021] KEELC 2571 (KLR)

Environment and Land Court
11 June 2021
3,274 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st defendant, John Njama Mwangi, with the 2nd defendant Geoffrey Maina Kihara, moved the Environment and Land Court at Kerugoya by Notice of Motion dated 19th June 2020 seeking, in substance, to vacate the court's ruling and injunctive orders of 13th December 2019, to have the prior judgment in Misc. Civil Application No. 22 of 2013 (Judicial Review) by Justice B.N. Olao maintained, to have parcel MUTITHI/CHUMBIRI/493 remain registered in their names following the alleged revocation of parcels 975-978, and to review and dismiss the 4th respondent's applications on grounds of alleged conflict of interest involving the firm of Wangechi Munene & Co. Advocates. The applicants claimed Eliud Warui fraudulently acquired parcel 493 and that a Mwea Land Disputes Tribunal award, adopted in Wang'uru SRM Arbitration Case No. 31 of 2004, revoked his title. The respondents opposed, arguing the application was misconceived under Order 8 CPR, that orders issued after an inter-parties hearing can only be challenged on appeal, that the tribunal lacked jurisdiction over land ownership, and that no title revocation affecting their parcels occurred. The applicants filed no submissions. Justice E.C. Cherono held that the orders of 13th December 2019 were issued after an inter-parties hearing and could not be set aside absent proper invocation of Order 45 CPR with proof of new matter or error apparent; that the court could not set aside its orders on the basis of a judgment in a different case; and that prayers 4 and 5 sought substantive relief ungrantable before a full hearing. The application was dismissed with costs to the plaintiffs.

Key legal issues

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01

Correct procedure for setting aside inter-parties orders

Holding

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.

Reasoning

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.

p. 5
02

Effect of the prior judicial review judgment

Holding

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.

Reasoning

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.

p. 5
03

Substantive reliefs at interlocutory stage

Holding

Orders declaring or maintaining ownership of land (prayers 4 and 5) are substantive and cannot be granted before a full hearing of the suit.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 19th June 2020 is dismissed with costs to the plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 8
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 40 Rule 1
  • Land Disputes Tribunal Act (repealed)not specified

Cases cited (2)

  • Misc. Civil Application No. 22 of 2013 (Judicial Review) - Kerugoya, judgment by B.N. Olao J dated 18th July 2014
  • Misc. Civil Application No. 62 of 2011 (formerly at Embu)
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

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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, "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.