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ELCPartially AllowedPetition No 8 of 2019· [2021] KEELC 3827 (KLR)

Johannes Akelo Omboto & another v Kenya Railways Corporation & 4 others [2021] KEELC 3827 (KLR)

Environment and Land Court
18 March 2021
3,289 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Once you file an appeal in Kenya, the High Court's door to review closes — but strong grounds like poor service must be raised in that appeal.

What this practically means

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Executive summary

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The court determined three applications arising from its judgment of 5th May 2020 in a land dispute between the petitioners (Omboto) and Kenya Railways Corporation, concerning suit property transferred through Hodima Construction Company Limited. First, the petitioners' application for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 sought to rely on letters showing that Kenya Railways had surrendered the land to the Government, which allocated it to Hodima. The court accepted this was new and important matter of evidence, but held that review is barred once an appeal is preferred, since both Kenya Railways and Hodima had appealed, and dismissed the application. Second, Hodima Construction Ltd, never served with the cross-petition and condemned unheard in violation of Article 50(1), sought setting aside of the judgment against it. The court found the non-service violated natural justice and rejected the grounds of opposition, but declined to allow the application because of the pending appeals, directing Hodima to the Court of Appeal. Third, Kenya Railways sought stay of execution pending appeal. The court applied Order 42 Rule 6(2) and the Halal v Thornton & Turpin criteria, found no inordinate delay, noted the decree of Kshs. 5,000,000 plus Kshs. 473,975, and ordered stay conditioned on the applicant furnishing security of those sums within 30 days, with status quo maintained and the petitioners restrained from eviction pending appeal. Each party to bear its own costs on the stay application.

Key legal issues

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01

Whether review under Section 80 CPA and Order 45 Rule 1 CPR was available

Holding

Although new and important matter of evidence was demonstrated, review is barred because appeals have been preferred

Reasoning

The court accepted that the letters showing surrender of the land to the Government were new and important evidence not obtainable with due diligence at trial, satisfying Order 45 Rule 1. However, since the 1st and 3rd Respondents had preferred appeals, granting review would render the appeals nugatory and interfere with their outcome, so the review application was dismissed.

p. 3
02

Whether the judgment against Hodima Construction Ltd should be set aside for want of service

Holding

The court found a natural justice violation but declined relief due to the pending appeal

Reasoning

The record showed no service of the cross-petition on Hodima, breaching Article 50(1). Grounds of opposition on affidavit formalities and the PDP failed since the applicant bore no onus on matters it never alleged. Yet because an appeal was pending in the Court of Appeal, the court held itself unable to interfere and directed the applicant to the appeal.

p. 4
03

Whether stay of execution pending appeal should issue

Holding

Stay granted conditioned on provision of security

Reasoning

Applying Order 42 Rule 6(2) and case law, the court found the decree involved payment of Kshs. 5,000,000 plus interest which the respondents may execute; the notice of appeal was filed within six days, so no inordinate delay; and security was warranted because respondents had not shown capacity to refund public money. Stay and maintenance of status quo preserved the subject matter of the appeal.

p. 4

Legal principles established

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  • Review is unavailable once an appeal has been preferred against the order, as the appellate court's re-examination would be affected
  • Service of a cross-petition on a person directly affected is required; condemning a party unheard violates Article 50(1)
  • Stay pending appeal requires substantial loss, no unreasonable delay, security, and that the appeal not be rendered nugatory

Court orders

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  1. 1.The Notice of Motion dated 8th May 2020 seeking review is dismissed with costs to the Applicant (Kenya Railways).
  2. 2.The Notice of Motion dated 20th May 2020 (filed 22nd May 2020) by Hodima Construction Ltd to set aside the judgment is not allowed, recourse being in the Court of Appeal.
  3. 3.Stay of execution of the Judgment dated 5th May 2020 and the decree issued on 8th May 2020 and all consequential orders arising therefrom is granted pending hearing and determination of the appeal.
  4. 4.Status quo on the ground to be maintained; the 1st respondents in the petition are restrained from evicting the petitioners and/or taking possession of the suit property until the appeal is heard and determined.
  5. 5.The Applicant (Kenya Railways) to provide security of Kshs. 5,000,000/= as damages and Kshs. 473,975/= from 14th August 2019 to 5th May 2020 within 30 days.

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 40(1) and 40(2)(a)

Cases cited (3)

  • Masisi Mwita vs Damaris Wanjiku Njeri
    Civil Appeal No.107 of 2015 (2016) eKLR
  • Halal & Another vs Thornton & Turpin Ltd
  • Hassan Guyo Wakalo vs Straman EA Ltd
    (2013)
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1, Order 10 Rule 11 and Order 42 Rule 6(2) of the Civil Procedure Rules; Article 50(1) of the Constitution

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, "Johannes Akelo Omboto & another v Kenya Railways Corporation & 4 others [2021] KEELC 3827 (KLR)", Case Analysis (2021). Petition No 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3827/eng@2021-03-18

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