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ELCDismissedNot stated in judgment· [2022] KEELC 115 (KLR)

Kariuki v Wolff; Kariuki (Interested Party) (Environment & Land Case 330 of 2017) [2022] KEELC 115 (KLR)

Environment and Land Court
27 April 2022
LMLucy N. Mbugua
1,893 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to change a 2018 land valuation and eviction order, confirming that final judgments can only be reopened in very limited circumstances.

What this practically means

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Executive summary

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This was a Notice of Motion dated 25th March 2021 by the Defendant seeking review of the judgment of 1st October 2018, specifically the assessed sum of Kshs 7,058,197.25 representing the value of the Plaintiff's developments on the suit property LR NO. 12661/61, and seeking eviction of the Plaintiff. The Defendant, an elderly woman residing in Germany, contended the assessment was inflated and should be re-determined by an independent valuer, and that the Plaintiff was frustrating her efforts to sell the property. The Interested Party supported the application. The Plaintiff opposed, arguing the court had arrived at the figure by averaging the parties' valuation reports (Kshs 10,594,394.50 and Kshs 3,522,000), that no new evidence or error on the face of the record was shown, and that any grievance lay in an appeal, not a review, three years after judgment. The court framed a single issue: whether review of the valuation assessment and eviction should be granted. Applying Order 45 Rule 1 of the Civil Procedure Rules, the functus officio doctrine as explained by the Supreme Court in Raila Odinga, and the threshold for reopening a decision in Kamau James Gitutho, the court found the assessment had been clearly adjudged, no mistake or error on the face of the record existed, and the review was an attempt to turn the court into an appeal court. The disposal orders in the 2018 judgment, including deposit of the assessed sum before sale to third parties, remained clear. The application was dismissed with no orders as to costs given that the parties are close family members.

Key legal issues

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01

Whether the Defendant established grounds for review of the assessed valuation of Kshs 7,058,197.25

Holding

Review refused; no error apparent on the face of the record and no new evidence adduced

Reasoning

The judgment of 1st October 2018 explained how the assessed sum was reached by averaging the parties' valuation reports. The Applicant adduced no evidence of any mistake. Seeking review of an assessment properly adjudged amounts to asking the court to sit as an appeal court, which Order 45 does not permit.

p. 4
02

Whether the Plaintiff should be evicted from the suit property

Holding

Eviction refused; the 2018 judgment already set out the disposal mechanism, including first offer to the Plaintiff and deposit of the assessed sum

Reasoning

The court held that the 2018 judgment was clear: the plaintiff has first offer on the suit premises, and failing that, the defendant may sell to others after depositing the assessed sum in court. No basis existed to disturb those disposal orders by way of an eviction order three years later.

p. 4

Legal principles established

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  • Once a court has adjudged a matter it becomes functus officio, retaining only residual jurisdiction to reopen cases in exceptional circumstances meeting the established threshold

Court orders

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  1. 1.The application dated 25.3.2021 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 45 Rule 1
  • Civil Procedure ActSection 80

Cases cited (5)

  • Isaak Kariuki Kamwitha & Anor vs Joseph Muriithi Ndegwa
    [2019] eKLR
  • Leonard Brandenberg vs Ann Atemo Makoba
    [2014] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
  • Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others
    [2013] eKLR
  • Kamau James Gitutho & 3 others v Multiple Icd (K) Limited & another
    [2019] eKLR
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules 2010 and Section 80 of the Civil Procedure Act (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kariuki v Wolff; Kariuki (Interested Party) (Environment & Land Case 330 of 2017) [2022] KEELC 115 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/115/eng@2022-04-27

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