Francis Kamau Ngugi v Jamlick Mwongera M'Nkanata & Another
The bottom line
#Kenya's Environment and Land Court amended a land judgment to restore one omitted parcel, but refused to add parcels not covered by the original decision.
What this practically means
#Executive summary
#Key legal issues
#Whether parcels 291, 1130, 1132 and 469 were erroneously omitted from the final orders
Only parcel 291 was erroneously omitted, as it was mentioned in the minister's decision; the other three parcels were not subject of that decision
The court examined its 22/5/2019 judgment and found the 23 parcels ordered cancelled were those in the minister's decision, not those in the letter of 25.7.1994 which improperly changed the minister's decision. Since parcel 291 appeared in the minister's decision, its omission from the final orders was an error apparent on the face of the record, but the other three parcels were not part of that decision.
Whether the delay in filing the review application was inordinate
The 6-7 month delay was not inordinate given the parties' 37-year litigation history
Although the application was filed on 3.12.2019, months after the May 2019 judgment, the court considered that the parties had been in litigation since 1983 when the committee case was lodged. Against that background the delay was not treated as inordinate and did not bar the review.
Whether cautions, restrictions and inhibitions could be lifted
The prayer failed as it was not included in the motion
The relief was raised only in the supporting affidavit of Francis Kamau and not in the notice of motion itself, contrary to Order 51 rule 4 which requires a notice of motion to state its grounds. The applicant's casual approach meant the court found no merit in that prayer.
Legal principles established
#- An error apparent on the face of the record must be one where there could reasonably be no two opinions; a possible view adopted by the court is not such an error
- A review cannot be used to reopen a case or determine third-party ownership claims
Court orders
#- 1.Parcel 291 is to be included in the final order in point 2 of the judgment of 22.5.2019, where it shall be placed between parcel 292 and 286
- 2.The judgment dated 22.5.2019 is amended accordingly
- Jurisdiction invoked
- Order 45 rule 1 and Order 51 rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Kamau Ngugi v Jamlick Mwongera M'Nkanata & Another", Case Analysis (2021). Notice of motion dated 3/12/2019 (ruling on review of judgment of 22/5/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4637/eng@2021-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.