Andrew Mwangi Chui & another v Hass Petroleum (K) Limited & 2 others [2021] KEELC 2632 (KLR)
The bottom line
#A Kenyan land court dismissed a bid to review its 2020 ruling, confirming that disagreeing with a judge's reasoning is grounds for appeal, not review.
What this practically means
#Executive summary
#Key legal issues
#Whether delay of four months in filing the review application was unreasonable
The delay was not unreasonable given the Covid-19 pandemic circumstances
The ruling was delivered without the parties' presence as they had been asked to provide e-mail addresses in April 2020 owing to the pandemic. The court held the Applicant should have enquired whether the ruling had been delivered, but was prepared to hold that the delay occasioned by the global Covid-19 circumstances was not unreasonable under Order 45.
Whether there was an error or mistake apparent on the face of the record
No error apparent on the face of the record; the ruling did not invalidate the Applicant's title
The Applicant only raised the alleged error in submissions, not in the application. The ruling of 7th May 2020 did not invalidate the title; it only observed that the portion was part of land allocated to the Respondents. Whether the title is legal is a matter for the main hearing. The National Bank of Kenya v Ndungu Njau and Nyamogo & Nyamogo v Kogo principles were applied that mere erroneous decision or misconstruction of law is not a ground for review.
Whether there was discovery of new and important evidence
No; entry number 7 (the bank charge) was on the register by the date of the official search and was obtainable with reasonable diligence
Entry number 7, a charge to Diamond Trust Bank for US Dollars 14,000,000, was entered on 17th October 2016, and an official search was obtained on 9th May 2018, the very day the replying affidavit was prepared. The Applicant could not claim the fact could not be availed at that time.
Legal principles established
#- An erroneous conclusion of law or evidence is not a ground for review but may be a ground for appeal
- An error apparent on the face of the record must be self-evident and not require elaborate argument; where two views are possible there is no such error
Court orders
#- 1.The Applicant's Notice of Motion dated 8th September 2020 seeking review of the ruling delivered on 7th May 2020 is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Mwangi Chui & another v Hass Petroleum (K) Limited & 2 others [2021] KEELC 2632 (KLR)", Case Analysis (2021). Not stated in judgment (references HCCC No.610 of 2004 and ELC Case No.1074 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2632/eng@2021-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.