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ELCDismissedNotice of motion application dated 1st February 2022 (suit number not stated in judgment)· [2022] KEELC 1302 (KLR)

Alvin Mbae & 2 others v Edwin Nyaga Mukatha & 2 others [2022] KEELC 1302 (KLR)

Environment and Land Court
22 February 2022
2,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Chuka refused to review its earlier land dispute orders, confirming that losing parties must appeal rather than seek review.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Chuka determined a notice of motion dated 1st February 2022 by the Applicants/Plaintiffs, who sought review and setting aside of the court's orders of 2nd December 2020, 3rd March 2021 and 17th January 2022, including orders committing the 1st and 3rd Applicants to civil jail for contempt. At the hearing, counsel confirmed only prayers 3 and 5 (review and setting aside) were pursued, invoking Order 45 of the Civil Procedure Rules and alleging errors: that the court was functus officio; that it executed an order rather than a decree under Section 51 of the Civil Procedure Act; that it treated an application as unopposed despite a filed replying affidavit; and that affidavits of service were deficient. The Respondents/Defendants opposed, contending the application was time-barred under Order 45 Rule 1, an abuse of process, and an attempt to make the court sit on appeal over its own orders. The court, per C. K. Yano, J, framed the single issue whether the orders should be reviewed. Applying established authority on review jurisdiction, it held that an error apparent on the face of the record must be self-evident without lengthy reasoning; the applicants' complaints amounted to dissatisfaction with the court's decisions, which lies in appeal, not review. No sufficient cause was shown. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether there was a mistake or error apparent on the face of the record in the orders of 02/12/2020, 03/03/2021 and 17/01/2022

Holding

No error apparent on the face of the record was established; the applicants were merely faulting the court's decisions, which is a ground of appeal, not review

Reasoning

The court applied Muyodi v ICDC and related authorities: an error apparent must be self-evident, manifest and clear without extraneous matter. The applicants' complaints - that the court was functus officio, executed an order rather than a decree, ignored a replying affidavit, and relied on deficient affidavits of service - required debate and reasoning, not self-evident errors. Dissatisfaction with a decision is a matter for appeal.

p. 4
02

Whether sufficient cause existed to warrant review

Holding

No sufficient cause was shown; the orders sought were similar to those already dealt with after hearing all parties

Reasoning

The court noted it had heard all parties and made determinations on the applications. The applicants offered nothing new; a party cannot use review to obtain a second innings after losing through negligence or indifference. Any party aggrieved by the orders must pursue the appellate route.

p. 4

Legal principles established

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  • Review under Order 45 is available only for discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason
  • A court exercising review jurisdiction cannot sit on appeal over its own decision; errors allegedly made by the court are grounds of appeal, not review
  • An error apparent on the face of the record must be self-evident and not require long debate or reasoning to detect

Court orders

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  1. 1.The application dated 1st February 2022 is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 51; Order 22 rules 82 and 83 (as cited by applicants)
  • Environment and Land Court ActSection 13

Cases cited (6)

  • Stephen Wanyoike Kinuthia (suing on behalf of John Kinuthia Marega (deceased) v Kariuki Marega & Another
    (2018) eKLR
  • Rose Kaiza v Angelo Mpanju Kaiza
    (2009) eKLR
  • Muyodi Vs Industrial and Commercial Development Corporation & Another
    EA LR [2006] 1 EA 213
  • Muhamed Mungai Vs. Ford Kenya Election, and Nominations Board and Another
    Nairobi High Court Judicial Review Misc. Application No. 53 of 2013
  • Attorney General & O'rs v Boniface Byanyima
    HCMA No.1789 of 2000
  • Levi Outa v Uganda Transport Company
    [1995] HCB 340
Jurisdiction invoked
Order 45 of the Civil Procedure Rules; Section 80 of the Civil Procedure Act; Section 13 of the Environment and Land Court 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, "Alvin Mbae & 2 others v Edwin Nyaga Mukatha & 2 others [2022] KEELC 1302 (KLR)", Case Analysis (2022). Notice of motion application dated 1st February 2022 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1302/eng@2022-02-22

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