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ELCPartially AllowedNot stated in the judgment extract· [2021] KEELC 3602 (KLR)

Adriano I Ambani v Christopher A Musatsi [2021] KEELC 3602 (KLR)

High Court of Kenya
20 April 2021
2,360 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court in Kakamega dismissed three applications in a land dispute, confirming that late appeals and reviews without clear errors will fail.

What this practically means

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Executive summary

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This judgment of the High Court at Kakamega (N.A. Matheka, J) determines three interlocutory applications arising from a land dispute over South Kabras/Shamberere/1735, in which the court had on 2nd July 2019 (judgment amended 28th September 2020) ordered cancellation of the defendant's title and reversion of the land to the original owner, Elkana Lichungu Ambani. First, the defendant's application of 25th November 2020 sought review of the judgment and a stay of execution under Section 80 of the Civil Procedure Act and Order 45, alleging the court was misinformed on the facts. The court, relying on Kwame Kariuki, Mwihoko Housing, Rose Kaiza and National Bank of Kenya v Ndungu Njau, held that no error apparent on the face of the record, no sufficient reason, and no new and important matter or evidence had been demonstrated, and dismissed the application with no orders as to costs. Second, the defendant's application of 9th December 2020 sought extension of time under Section 79G to file a Notice of Appeal. The court applied Paul Musili Wambua on the factors for extension, found the delay unexplained and the application an afterthought, and dismissed it with no orders as to costs. Third, the plaintiff's application sought orders compelling the Land Registrar and Land Surveyor Kakamega to visit and equally subdivide the suit parcel. The court held that its earlier judgment had already cancelled the title and reverted the land to the original owner, and the plaintiff could not return to court to ask for a surveyor's visit; it too was dismissed with no orders as to costs. All three applications were therefore dismissed, with no orders as to costs on any of them.

Key legal issues

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01

Whether the grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 were met

Holding

The defendant failed to demonstrate any error apparent on the face of the record or discovery of new and important matter or evidence; the application for review was dismissed.

Reasoning

The court set out the statutory grounds in Section 80 and Order 45 Rule 1(b) and the applicable authorities, and found no self-evident error or new evidence. The defendant's written statement and evidence were already on record, so no new matter had come to his knowledge after the judgment. The discretion to review exists but must be exercised judiciously, not capriciously.

p. 3
02

Whether time should be extended under Section 79G of the Civil Procedure Act for filing the Notice of Appeal

Holding

Extension of time was refused because no good and sufficient cause for the delay was demonstrated; the application was an afterthought filed after the review application.

Reasoning

Judgment was delivered on 2nd July 2019 and amended on 28th September 2020, yet the application was filed in December 2020 only after the review application. The court found the applicant confused as to the orders sought and the reason for delay unacceptable. Section 79G permits admission of out-of-time appeals only on good and sufficient cause, which was not shown.

p. 3
03

Whether the court should order the Land Registrar and Surveyor to subdivide S/Kabras/Shamberere/1735 equally between the parties

Holding

The application was dismissed because the judgment of 2nd July 2019 had already ordered cancellation of the title and reversion of the land to Elkana Lichungu Ambani; the plaintiff could not return to seek a surveyor's visit.

Reasoning

The court perused its own judgment and confirmed that the orders it had previously made were cancellation of the title and reversion to the original owner. A fresh order directing an equal subdivision and survey would go beyond, and be inconsistent with, that earlier judgment. The plaintiff could not come back to court to ask for a visit by the surveyor on that basis.

p. 3

Legal principles established

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  • Once an appeal is preferred, the door is closed on review of the order appealed from
  • Review may only be granted to correct an error or omission on the part of the court that is self-evident and requires no elaborate argument to establish
  • An appeal out of time may be admitted where the appellant shows good and sufficient cause, and in deciding extension of time the court considers the length of and reason for the delay, the chances of the appeal succeeding, and prejudice to the respondent

Court orders

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  1. 1.The defendant's application dated 25th November 2020 for review and stay is dismissed with no orders as to costs
  2. 2.The defendant's application dated 9th December 2020 for extension of time to file and serve the Notice of Appeal is dismissed with no orders as to costs
  3. 3.The plaintiff's application seeking orders that the Land Registrar Kakamega and Land Surveyor Kakamega visit and subdivide land parcel S/Kabras/Shamberere/1735 equally between the parties is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 80
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 95
  • Civil Procedure Rules, 2010Order 45 Rule 1(b)
  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Civil Procedure Rules, 2010Order 51
  • Constitution of KenyaArticle 159(2)

Cases cited (5)

  • Kwame Kariuki & Another vs. Mohamed Hassan Ali & 4 Others
    (2014) eKLR
  • Mwihoko Housing Company Limited vs Equity Building Society
    (2007) 2 KLR 171
  • Rose Kaiza Vs Angelo Mpanju Kaiza
    2009
  • National Bank of Kenya vs Ndungu Njau
    Civil Appeal No. 211 of 1996
  • Paul Musili Wambua v Attorney General & 2 others
    (2015) eKLR
Jurisdiction invoked
Sections 80, 3A, 79G and 95 of the Civil Procedure Act; Order 45 and Order 51 of the Civil Procedure Rules, 2010; Article 159(2) of the Constitution of Kenya

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, "Adriano I Ambani v Christopher A Musatsi [2021] KEELC 3602 (KLR)", Case Analysis (2021). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3602/eng@2021-04-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.