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ELCDismissedNot stated in the extract· [2022] KEELC 676 (KLR)

John Kengo Chome & 5 others v Greenbelt Warehouses Limited [2022] KEELC 676 (KLR)

Environment and Land Court
23 March 2022
NMN.A. MATHEKA
1,697 words in judgment
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The bottom line

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The Mombasa Environment and Land Court refused to lift injunctions protecting a 256-acre Kwale land parcel, ruling the defendant showed no legal grounds for review.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Mombasa (Mathyka J) on the defendant's application dated 31st January 2022, seeking inter alia vacation of injunctive orders issued on 26th October 2021, stay of the suit, striking out of the suit, a declaration that the plaintiffs had no interest in the suit property (approximately 256 acres in Gora Village, Samburu, Kwale County), a mandatory injunction, police-enforced eviction of persons on the property, and security for costs of Kshs. 5 million. The defendant, claiming to be the registered owner, relied on a Memorandum of Understanding dated 13th September 2018 under which the plaintiffs allegedly admitted non-ownership and received payment for removing graves and vacating. The 1st plaintiff/respondent maintained he was the lawful owner of the 256 acres, that the defendant fraudulently acquired title beyond the approximately 102 acres it purchased without completing payment, and that the application was an abuse of process. The court treated the application as one for review, setting out the framework in Section 80 of the Civil Procedure Act and Order 45 Rule 1(b), and applying Kwame Kariuki, Mwihoko Housing, Rose Kaiza and National Bank of Kenya v Ndungu Njau. Holding that the applicant showed no error apparent on the face of the record, no new evidence and no sufficient reason, the court dismissed the application with costs and advised the parties to take a hearing date.

Key legal issues

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01

Whether the conditions for review under Order 45 Rule 1(b) and Section 80 of the Civil Procedure Act were met

Holding

The application for review failed; no error apparent on the face of the record, no new evidence, and no other sufficient reason was demonstrated

Reasoning

The court set out the statutory criteria in Order 45 Rule 1(b) and Section 80 of the Civil Procedure Act, being discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason. Drawing on Kwame Kariuki, Mwihoko Housing, Rose Kaiza and National Bank of Kenya v Ndungu Njau, the court held the error must be self-evident and not require elaborate argument. The applicant showed none of these grounds; mere prejudice from the ruling and a different possible view of the matter are not grounds for review.

p. 3

Legal principles established

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  • Review is only available where no appeal has been preferred against the order
  • A review may be granted only to correct an apparent error or omission on the part of the court; a different view by another judge is not a ground for review
  • The court's discretion under Section 80 of the Civil Procedure Act must be exercised judiciously and not capriciously

Court orders

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  1. 1.The application dated 31st January 2022 is dismissed with costs
  2. 2.Parties advised to take a hearing date in the matter

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of KenyaSections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrder 42 Rule 6; Order 45 Rule 1(b); Order 51 Rule 1
  • Constitution of KenyaArticle 40

Cases cited (4)

  • Kwame Kariuki & Another vs. Mohamed Hassan Ali & 4 Others
    (2014) eKLR
  • Mwihoko Housing Company Limited vs Equity Building Society
    (2007) 2 KLR 171
  • Rose Kaiza Vs Angelo Mpanju Kaiza
    2009
  • National Bank of Kenya vs Ndungu Njau
    Civil Appeal No. 2111 of 1996
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act, Cap 21; Order 42 Rule 6; Order 51 Rule 1; Order 45 Rule 1; Section 80 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Kengo Chome & 5 others v Greenbelt Warehouses Limited [2022] KEELC 676 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/676/eng@2022-03-23

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