Andrew Mang’uu Kaboi v Wellington Kihato Wamburu [2022] KEELC 1080 (KLR)
The bottom line
#A Kenyan land court refused a defendant a second chance to file his defence, ruling the same request could not be asked twice.
What this practically means
#Executive summary
#Key legal issues
#Whether the prayer for leave to file defence out of time is res judicata
Yes - the identical prayer was determined with finality on 25th February 2021, the parties are the same, and the court is functus officio; the prayer is struck out
The court reviewed the record of 25th February 2021 showing it had declined the oral application for leave to file defence and had expressly stated the issue could not be raised again in a formal application. All elements of section 7 of the Civil Procedure Act were satisfied: competent court, same parties, same issue directly and substantially in issue, heard and finally determined. The court therefore lacked power to entertain the same prayer again.
Whether the threshold for review of the orders of 25th February 2021 was met
No - the applicant demonstrated neither discovery of new and important matter, error apparent on the face of the record, nor sufficient reason, and did not appeal the orders
Section 80 of the Civil Procedure Act and Order 45 Rule 1 require new and important matter, an error apparent on the face of the record, or other sufficient reason, plus application without unreasonable delay. The applicant relied only on the same 'mistake of counsel' ground already rejected; dissatisfaction with an order is a ground for appeal, not review.
Whether the proceedings of 25th February 2021 should be set aside
No - the proceedings were conducted with the applicant and his counsel present and willing; no basis for setting aside was shown
The court found the applicant had not faulted the proceedings in any way nor given any reason why they should be set aside. Discretion to set aside was therefore not engaged.
Legal principles established
#- An issue already determined with finality by a competent court cannot be relitigated in a formal application merely because it is reduced to writing; the court becomes functus officio and section 7 bars redetermination
- A mistake of counsel is not, by itself, a ground for review where the applicant has sidestepped the conditions in Order 45 Rule 1 of the Civil Procedure Rules
- An erroneous view of evidence or law is a ground for appeal, not for review
Court orders
#- 1.The prayer for leave to file defence out of time is struck out as res judicata
- 2.The Notice of Motion dated 2nd March 2021 is dismissed for lack of merit and being an abuse of the court process
- Jurisdiction invoked
- Sections 1A & B, 3A and 63(e) of the Civil Procedure Act and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Thiongo & another v Gathuru (Environment & Land Case 133 of 2017) [2022] KEELC 3200 (KLR)[2022] KEELC 3200 (KLR)9 Jun 2022
Cite this brief
#Cite this brief
Caselaw, "Andrew Mang’uu Kaboi v Wellington Kihato Wamburu [2022] KEELC 1080 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1080/eng@2022-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.