Raphael Muyu Makanda v Johnson Utu Kitheka [2021] KEELC 2906 (KLR)
The bottom line
#The Environment and Land Court dismissed a review application filed two years late, confirming that grievances with a judgment should be appealed, not reviewed.
What this practically means
#Executive summary
#Key legal issues
#Whether dismissal of Machakos HCCC No. 39 of 2003(OS) was new and important matter not within the applicant's knowledge
It was not; the suit was pending when the appeal was filed in 2012, so its dismissal was not a discovery after due diligence
The applicant knew of HCCC No. 39 of 2003(OS) throughout the appeal; its subsequent dismissal for want of prosecution was therefore not new matter unknowable at the time of the decree. Moreover, the court's setting aside of the lower court judgment rested on the Magistrate's failure to determine limitation, a ground unaffected by the High Court suit's fate.
Whether the judgment contained an error apparent on the face of the record
No; the issues raised require long-drawn argument and amount at most to erroneous decision, reviewable only on appeal
The applicant contended the court erred in setting aside an executed judgment and in considering extraneous matters. The court held such complaints - whether the Magistrate should have addressed limitation or stayed the suit - are debatable points requiring appellate argument, not apparent errors on the record.
Whether execution of the lower court judgment before the appeal judgment vitiated the review
No; once the lower court judgment was set aside, its prior execution was immaterial
Having set aside the judgment of Kitui PMCC No. 178 of 2003, the fact that it had been executed before the appeal was decided did not create a ground for review; the setting aside operates regardless of prior execution.
Whether the application was filed without unreasonable delay
No; it was filed more than two years after the judgment of 13th April, 2018
Order 45 Rule 1 requires review applications to be brought without unreasonable delay. The applicant moved the court on 9th June 2020, over two years after the impugned judgment, which independently disentitled him to review.
Legal principles established
#- An erroneous decision is not an error apparent on the face of the record; only an error that admits of no two opinions qualifies
- A review application must be made without unreasonable delay
- A party aggrieved by a court's holding should appeal rather than seek review
Court orders
#- 1.The Application dated 9th June, 2020 is dismissed
- 2.Costs of the application awarded to the Appellant/Respondent
- On appeal from
- Kitui Principal Magistrate's Court
- Kitui PMCC No. 178 of 2003
- Jurisdiction invoked
- Order 45 Rule 1 of the Civil Procedure Rules (review of judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Muyu Makanda v Johnson Utu Kitheka [2021] KEELC 2906 (KLR)", Case Analysis (2021). Notice of Motion dated 9th June, 2020 (Appeal judgment dated 13th April, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2906/eng@2021-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.