Thomas Kimagut Arap Sambu & another v County Government of Kericho & another [2021] KEELC 4051 (KLR)
The bottom line
#A Kenyan court refused to review a survey order because it was made on the spot, not in a formal ruling, so review was the wrong legal route.
What this practically means
#Executive summary
#Key legal issues
#Competency of an application for review directed at an extempore order
The application was incompetent because review lies only against orders arising from judgements or reasoned rulings
The court held that the statutory scheme in Section 80 and Order 45 requires the applicant to be aggrieved by a decree or order arising from a judgement or reasoned ruling. The order directing the joint survey was made extempore during a site visit, not at a critical decisional moment captured in a ruling. It could possibly have been set aside, but was outside the scope of review and not appealable.
Merits of the review even if competent
The application would fail on merits because the applicants knew of the County Surveyor's participation and witness statement and acquiesced
Counsel and the applicants knew before the site visit that the County Surveyor would attend, raised no objection on the spot, and knew of his 2017 witness statement. His participation was with express or implied permission, or the applicants acquiesced. Allegations that he was an imposter or working with cartels lacked credible evidence, and no showing was made that the survey work was unprofessionally done.
Whether grounds of opposition suffice to respond to factual issues
The court did not need to determine this given the dismissal, and treated the respondents' cited law as correct on review
The applicants argued factual matters remained unopposed because the respondents used grounds of opposition rather than replying affidavits. The court did not resolve this as a discrete issue, instead considering the proceedings record itself and dismissing on competency and merits grounds.
Legal principles established
#- Only orders arising from reasoned judgements and/or rulings of the court are eligible for review; extempore orders made in the course of proceedings are not reviewable
- An error apparent on the face of the record must be obvious and plain, not one established by long drawn reasoning; mere error or wrong view is a ground for appeal, not review
- Grounds of opposition can sufficiently respond where they address the issues; and an applicant for review must show due diligence regarding newly alleged matters
Court orders
#- 1.The applicants' notice of motion dated 15th July, 2019 dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (cap 21), Order 45 Rule 1 and Order 50 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Kimagut Arap Sambu & another v County Government of Kericho & another [2021] KEELC 4051 (KLR)", Case Analysis (2021). Motion on notice dated 15th July, 2019 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4051/eng@2021-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.