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ELCDismissedNotice of Motion dated 18th September 2020 (in ELC Originating Summons dated 3rd May 2012)· [2022] KEELC 679 (KLR)

Wilson njiri gikonyo v Ruth Mary Wangui & 2 others [2022] KEELC 679 (KLR)

Environment and Land Court of Kenya
24 March 2022
4,187 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by J M Mutungi, J of the Environment and Land Court at Nakuru determined a Notice of Motion dated 18th September 2020 by Mary Wanjiku Njiiri and David Gikonyo Njiiri, widow and son respectively of the deceased plaintiff Wilson Njiiri Gikonyo. The application sought their substitution as plaintiffs in place of the deceased and the review and setting aside of a judgment delivered on 15th February 2013 which dismissed the deceased's Originating Summons for failure to attach a certified abstract of title, along with consequential orders reversing the decree and the party-and-party billing of costs. The court held that Order 24 of the Civil Procedure Rules, governing substitution, applies only to pending suits and there was none after the judgment; it nonetheless substituted the applicants for purposes of the review application only. On review, the court set out the conditions under Section 80 of the Civil Procedure Act and Order 45 Rule 1: discovery of new and important matter, error apparent on the face of the record, or sufficient reason, all to be raised without unreasonable delay. Relying on Menginya Sahim Mugani v Kenya Revenue Authority and National Bank of Kenya v Ndungu Njau, the court held that complaints about the judge's exposition of the law on adverse possession were appellate, not review, matters; that a judge of concurrent jurisdiction cannot sit on appeal over a fellow judge's decision; and that delivery of a judgment instead of the reserved ruling was not an error. Inordinate delay of over seven years and changes affecting the suit property (with a fresh suit, Nakuru HC ELC No. 193 of 2014, already pending) further weighed against review. The application was dismissed with costs to the defendant/respondent.

Key legal issues

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01

Substitution of deceased plaintiff's legal representatives after judgment

Holding

The applicants were substituted solely for purposes of the review application, as Order 24 governs pending suits and none remained after the judgment

Reasoning

Order 24 applies to suits that are pending or ongoing. Following the judgment of 15th February 2013 dismissing the plaintiff's case, no suit remained pending. Revival under Order 24 Rule 7(2) was inapplicable. The court found no bar to substituting the holders of the grant of letters of administration for purposes of the review application only.

p. 3
02

Whether the conditions for review under Order 45 Rule 1 were met

Holding

None of the grounds - discovery of new matter, error apparent on the face of the record, or sufficient reason - was established, and the application was brought after inordinate delay

Reasoning

The applicants' complaints went to the correctness of the judge's exposition of the law on adverse possession and the conduct of the proceedings. Such grievances, even if valid, are appellate matters. A review cannot be used to challenge the merits of a judgment, and a judge of concurrent jurisdiction cannot sit on appeal over a fellow judge's decision. Inordinate delay of over seven years further disentitled the applicants.

p. 5
03

Whether delivery of a judgment instead of the reserved ruling was an error on the face of the record

Holding

No - the disposal by written submissions and delivery of a judgment was proper under Order 37, no Order 37 Rule 19 directions having been given

Reasoning

Under Order 37, there is no requirement of oral evidence unless the court directs treatment as a plaint under Rule 19. Since the parties agreed to dispose of the originating summons by written submissions, the judge properly prepared a final judgment, not a ruling, based on affidavit evidence, the preliminary objection and the submissions.

p. 4

Legal principles established

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  • A court, after passing judgment, becomes functus officio and cannot revisit the judgment on merits save as provided by law
  • A review may only be granted to correct an apparent error or omission that is self-evident; a different view of the matter or an erroneous exposition of law is not a ground for review
  • An application for review is not an appeal; errors of law by a judge of concurrent jurisdiction can only be corrected on appeal

Court orders

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  1. 1.The applicants substituted in place of the deceased plaintiff for purposes of the present application only
  2. 2.The applicants' Notice of Motion dated 18th September 2020 dismissed with costs to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80; Section 100
  • Civil Procedure Rules 2010Order 24 Rules 3, 4, 7; Order 37 Rules 7(2), 19; Order 45 Rule 1
  • Limitation of Actions Actnot specified
  • Judicature Actnot specified
  • Evidence Actnot specified
  • Advocates Actnot specified
  • Land Registration Act 2012not specified
  • Constitution of Kenya 2010not specified

Cases cited (2)

  • Menginya Sahim Mugani -vs- Kenya Revenue Authority
    (2014) eKLR
  • National Bank of Kenya Ltd -vs- Ndungu Njau
    (1997) eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (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 (2)

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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, "Wilson njiri gikonyo v Ruth Mary Wangui & 2 others [2022] KEELC 679 (KLR)", Case Analysis (2022). Notice of Motion dated 18th September 2020 (in ELC Originating Summons dated 3rd May 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/679/eng@2022-03-24

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