Samuel Mwangi Kahara v Dlaso, Upper Athiru Gaiti ‘C’ Adjudication Section & another; Elijah Mutuma Johanna (Interested Party) [2022] KEELC 331 (KLR)
The bottom line
#A Kenyan court refused to review a land judgment because the applicant had already filed an appeal and could not use both routes at once.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment sought to be reviewed was an exparte judgment
It was not; all parties fully participated, so Order 12 Rule 7 on setting aside exparte judgments did not apply.
The record showed the respondents were duly served with the notice of motion and the interested party filed a replying affidavit responding on the merits of the demarcation dispute. The proceedings were therefore heard on the merits, not in default, and the applicant's submissions founded solely on Order 12 Rule 7 were misconceived.
Whether review grounds under Order 45 Rule 1 were established
No - the applicant verified the pleadings himself and no appeal route barred review.
The court had decided on the statement of facts and verifying affidavit which the applicant himself swore and signed, and the substantive notice of motion with supporting affidavit also sworn by him. Blame shifted to former advocates was irreconcilable with his personal verification of the documents. Additionally, a notice of appeal dated 13.12.2021 was on record, defeating review.
Whether stay of execution should be granted
Refused for absence of execution proceedings to stay.
Under Order 22, a stay arises in the context of a notice of execution or an objection to attachment by an attaching creditor. No such notice or objection existed and there was no evidence execution of the decree or costs had commenced, so there was nothing before the court to stay.
Legal principles established
#- A party who has lodged a notice of appeal cannot simultaneously seek review before the same court.
- A litigant cannot escape personal responsibility for omissions in filings by blaming counsel where he swore and verified the affidavits himself.
- Review under Order 45 Rule 1 requires discovery of new and important matter, mistake or error apparent on the face of the record, filed without unreasonable delay, and is only available where no appeal has been preferred.
Court orders
#- 1.Leave granted to the firm of Ngentu & Co. Advocates to come on record for the judgment debtor
- 2.The notice of motion dated 7.2.2022 dismissed save for prayer no. 2 thereof; prayers 3 and 4 found lacking in merit
- Jurisdiction invoked
- Orders 9 Rule 9, 12 Rule 7, 22 Rule 5, 45 Rule 1 Civil Procedure Rules; Sections 3, 8 and 80 Civil Procedure Act; ELC Act; Article 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Mwangi Kahara v Dlaso, Upper Athiru Gaiti ‘C’ Adjudication Section & another; Elijah Mutuma Johanna (Interested Party) [2022] KEELC 331 (KLR)", Case Analysis (2022). Notice of Motion dated 7.2.2022 (Judicial Review proceedings re: decision dated 1.5.2019 over Parcel No. 365 Igembe Adjudication Area Upper Athiru Gaiti C). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/331/eng@2022-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.