Danson K Cheboi & 5 others v Chesang Kiptalai & 10 others [2021] KEELC 3246 (KLR)
The bottom line
#A Kenyan court threw out a bid to review a 2017 land ruling because the applicants waited three years and confused disagreement with a court decision for an appealable error.
What this practically means
#Executive summary
#Key legal issues
#Whether there is an error apparent on the face of the ruling of 29th September 2017
No. Establishing the alleged error would require examining pleadings and judgments in prior suits not annexed, involving a long process of reasoning; the complaint is really that the court took a different view, which is an appellate grievance.
The court adopted the definition that an error apparent must be manifest and self-evident without extraneous matter or elaborate argument. To show incorrectness of the res judicata finding, the pleadings and judgments in SRMC Land Case No. 62 of 1986 and Eldoret HCCA No. 3 of 1987 would need examination, which had not been annexed and would constitute extraneous matters outside the scope of review. The Plaintiffs' real complaint was disagreement with the court's conclusion, for which appeal is the proper remedy.
Whether the application was filed without unreasonable delay
No. The application was filed 3 years after the ruling with no explanation; Order 45 Rule 1(b) requires applications for review to be made without unreasonable delay, and the respondent's lack of prejudice is irrelevant.
The Plaintiffs conceded the 3-year delay but argued the Defendants had not shown prejudice. The court held that Order 45 Rule 1(b) does not place any burden on respondents to demonstrate prejudice; rather, applicants must show they filed without unreasonable delay. Relying on Afapack Enterprises Limited v Punita Jayant Acharya, where even a 9-month unexplained delay was held inordinate, the court found the unexplained 3-year delay fatal to the application.
Legal principles established
#- An error apparent on the face of the record must be self-evident without detailed examination or long-drawn reasoning; a merely erroneous decision or a different possible view is not a ground for review.
- An application for review must be brought without unreasonable delay, and the applicant bears the burden of explaining any delay; the respondent need not show prejudice.
- Where the grievance is with the correctness of a ruling, appeal, not review, is the appropriate remedy, and the reviewing court is functus officio.
Court orders
#- 1.The Plaintiffs' application dated 16th September 2020 is dismissed in its entirety.
- 2.Costs of the application awarded to the Defendants.
- Jurisdiction invoked
- Articles 22, 23, 28, 40, 43, 45, 48, 50 and 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 45 Rules 1, 2 and 5 of the Civil Procedure Rules; Section 80 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Danson K Cheboi & 5 others v Chesang Kiptalai & 10 others [2021] KEELC 3246 (KLR)", Case Analysis (2021). Notice of Motion dated 16th September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3246/eng@2021-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.