Kenneth Kariuki Ireri v Titus Kithinji Ndichi [2021] KEELC 2646 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicant was aggrieved so as to sustain a review
The applicant, not being the registered owner and only condemned to costs, was not shown to be personally aggrieved by the ownership orders
The court noted that the decree changed title from Kenneth, the registered owner, to Kithinji, yet Kenneth never complained. The applicant was only condemned to pay costs and the application did not concern costs. Ownership, the court held, was not the applicant's to pursue, particularly as Kithinji disclaimed any interest in parcel No. 1294.
Whether there was an error apparent on the face of the record or sufficient reason for review
No; the alleged error consisted of untendered evidence the applicant chose not to offer despite having been served
The court found an affidavit of service showing the applicant was served with summons and the defence and counterclaim. His bare assertion of non-service was unsubstantiated. The evidence he wished to adduce was therefore not denied to him; he simply failed to seize the opportunity to be heard, which is not a ground for review.
Whether the application was brought without undue delay
The application, filed about one and a half years after judgment, was late and unexplained
The respondent deposed and submitted that the judgment was delivered on 28.3.2019 and the application filed around September 2020. The court accepted that the applicant was served back in 2010, undermining his claim of ignorance of the suit until served with a bill of costs.
Legal principles established
#- Where it is not readily noticeable that a person seeking review is aggrieved, sound reasons must be shown as to how that person is affected by the judgment
- An error or mistake on the face of the record must be obvious, easily noticeable and straightforward, and sufficient reason must be analogous to such an error
Court orders
#- 1.The Notice of Motion dated 28.8.2020 seeking review, variation and/or setting aside of the judgment and decree of 28.3.2019 is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Sections 3A and 3B(1)(a) of the Civil Procedure Act (Cap 21) and Order 45 Rule (1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Kariuki Ireri v Titus Kithinji Ndichi [2021] KEELC 2646 (KLR)", Case Analysis (2021). ELC No. 201/2015 (originally HCC No. 167/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2646/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.