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ELCDismissedNot stated in judgment (references HCCC No.610 of 2004 and ELC Case No.1074 of 2015)· [2021] KEELC 2632 (KLR)

Andrew Mwangi Chui & another v Hass Petroleum (K) Limited & 2 others [2021] KEELC 2632 (KLR)

Environment and Land Court
24 June 2021
1,743 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The 1st Defendant/Applicant filed a Notice of Motion dated 8th September 2020 seeking review of a ruling delivered on 7th May 2020 in which the court had granted the Plaintiffs an injunction, and further sought that the suit be set down for hearing. The application rested on three grounds: error apparent on the face of the record (an alleged finding that the Applicant's title to LR No.2671 IR No.122352 was invalid), discovery of new and important evidence (entry number 7 on the title, a charge to Diamond Trust Bank for US Dollars 14,000,000), and any other sufficient reason, namely alleged misconstruction of law regarding a vesting order and party status in related suits. The Respondents opposed, arguing the application was incompetent for failure to annex the extracted order and that no review threshold was met. The court held the four-month delay was not unreasonable given the Covid-19 pandemic. However, it found no error apparent on the face of the record: the ruling had not invalidated the title but merely observed the suit property formed part of land allocated to the Plaintiffs, a question reserved for the main hearing. The new evidence failed because entry 7 was registered on 17th October 2016 and appeared in an official search of 9th May 2018, so it was obtainable with reasonable diligence. Applying Court of Appeal authority, the court held that misconception of law or evidence is a ground of appeal, not review. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether delay of four months in filing the review application was unreasonable

Holding

The delay was not unreasonable given the Covid-19 pandemic circumstances

Reasoning

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.

p. 2
02

Whether there was an error or mistake apparent on the face of the record

Holding

No error apparent on the face of the record; the ruling did not invalidate the Applicant's title

Reasoning

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.

p. 2
03

Whether there was discovery of new and important evidence

Holding

No; entry number 7 (the bank charge) was on the register by the date of the official search and was obtainable with reasonable diligence

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Applicant's Notice of Motion dated 8th September 2020 seeking review of the ruling delivered on 7th May 2020 is dismissed
  2. 2.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 (and Order 45 Rule 1); Order 47 Rule 1 of the Civil Procedure Code of India referenced via Mulla

Cases cited (5)

  • Stephen Gathua Kimani Vs Nancy Wanjira Waruingi T/a Providence Auctioneers
    (2016) eKLR
  • National Bank of Kenya Limited Vs Ndungu Njau
  • Jameny Mudaki Asava Vs Brown Otengo Asava & another
    (2015) eKLR
  • Origo & Another Vs Mungala
    (2005) eKLR 307
  • Nyamogo & Nyamogo Vs Kogo
    (2001) EA 170
Jurisdiction invoked
Order 45 of the Civil Procedure Rules (review jurisdiction)

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, "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.