Mkupuo Network Awareness v Cabinet Secretary Ministry of Lands and Physical Planning, Director of Land Adjudication and Settlement Kwale, Kwale International Sugar Company Limited, National Land Commission & Attorney General [2022] KEELC 209 (KLR)
The bottom line
#The court refused to overturn its earlier land orders but partially adjusted them to protect a mature sugar cane crop.
What this practically means
#Executive summary
#Key legal issues
#Error apparent on the face of the record
The applicant failed to demonstrate an error apparent on the face of the record from the court's reliance on the Ministry of Interior letter
The court reiterated that an error apparent must be self-evident, requiring no elaborate argument, per Nyamogo & Nyamogo v Kogo. The alleged error here required lengthy explanation by counsel and involved matters of reasoning; disagreements of that nature are matters of appeal, not review.
Discovery of new and important matter
No new discovery was established as the contracts and evidence were within the applicant's knowledge at the time of the original orders
The agreements with Pepco [K] Limited and China Civil Engineering Construction Corporation [K] Limited were dated 2020 and 2019 respectively and annexed in an earlier replying affidavit. Only the photographs of the sugar cane crop were new, and the court dealt with those under 'sufficient reason'.
Other sufficient reason for review
The court found sufficient reason in the existence of a mature commercial sugar cane crop requiring maintenance, and partially reviewed the orders
The photographs exhibited ('BM4') revealed a sugar cane crop planted on a commercial basis that could not have existed at the time of filing. Its maintenance was necessary and no prejudice would befall the Petitioners. The court exercised discretion under 'any other sufficient reason' to substitute tailored orders.
Legal principles established
#- The grounds for review under Order 45 are disjunctive and mutually exclusive; an applicant need not meet all of them, but must file without unreasonable delay
- Review is not a forum for re-opening a case or fresh argument and is not to be equated with an appeal
- Discovery of a mature sugar cane crop not exhibited earlier constitutes 'other sufficient reason' warranting limited review
Court orders
#- 1.Pending hearing and determination of the petition, the 3rd Respondent, their officers, employees and agents shall have unlimited access to the land under cane growing and the area prepared for cane growing, to carry out activities geared towards maintenance of the crop
- 2.The Petitioners shall keep the peace to enable compliance with the orders
- 3.Pending hearing and determination of the petition, a temporary injunction be issued against the 3rd Respondent from wasting, dissipating or in any way dealing with land within Ramisi Phase 1 Block 5056 not prepared for sugar planting and land occupied by the Petitioners including their crops and subsistence trees
- 4.Costs shall follow the event
- 5.The petition to proceed for hearing on 4th and 5th May 2022 without fail
- Jurisdiction invoked
- Sections 3A & 80 of the Civil Procedure Act; Order 45 Rules 1 & 2 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mkupuo Network Awareness v Cabinet Secretary Ministry of Lands and Physical Planning, Director of Land Adjudication and Settlement Kwale, Kwale International Sugar Company Limited, National Land Commission & Attorney General [2022] KEELC 209 (KLR)", Case Analysis (2022). ELC Petition No. 14 of 2021 (Review Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/209/eng@2022-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.