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ELCDismissedELC Case of 2014 (Kericho)· [2022] KEELC 1359 (KLR)

Tapsabei Sigei Korir v Judy Chepkorir Koech [2022] KEELC 1359 (KLR)

Environment and Land Court
17 February 2022
3,084 words in judgment
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The bottom line

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The Environment and Land Court in Kericho dismissed a bid to review a land judgment, confirming Kenya's strict procedures on representation and that appeals, not reviews, fix alleged legal errors.

What this practically means

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Executive summary

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This was a ruling on the Defendant's notice of motion dated 14th May 2019 seeking review of the judgment delivered on 6th April 2018 - in which the court found that the Plaintiff, the Defendant's mother-in-law, was the absolute owner of land parcels Kericho/Silibwet/93 and Kericho/Silibwet/1231 and ordered the Defendant to vacate and remove cautions - together with stay of proceedings and leave for a new advocate to come on record. The court framed three issues: whether P Sang & Company Advocates were properly on record, whether stay of proceedings should issue, and whether grounds for review were established. It held the advocates were not properly on record because no Notice of Appointment was filed as required by Order 9 Rule 7, a mandatory procedure, and rejected the prayer. Stay of proceedings was refused because judgment had already been delivered and no proceedings were pending. On review, the court found no discovery of new and important matter, no error apparent on the face of the record, and no other sufficient reason under Order 45 Rule 1; the Applicant's complaints - her marriage to the deceased son, the alleged trust and her residence - had been addressed in the original judgment, and any misapprehension of law could only be corrected on appeal, as a court cannot sit in appeal on its own judgment. The court also observed the application invoked provisions that confer no jurisdiction for the reliefs sought. The application was dismissed in its entirety with costs.

Key legal issues

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01

Whether the firm of P Sang & Company Advocates were properly on record for the Defendant

Holding

They were not; counsel failed to file a Notice of Appointment as required by Order 9 Rule 7 of the Civil Procedure Rules before filing the application

Reasoning

Order 9 Rule 7 requires a party who appoints an advocate after having defended in person to give notice of appointment. Counsel filed only a Certificate of Urgency purporting to come on record. The court held the provision sets out a mandatory procedure that cannot be waived as a mere technicality, notwithstanding the constitutional right to representation, and rejected the prayer.

p. 3
02

Whether stay of proceedings ought to issue

Holding

No; judgment had been delivered and there were no proceedings pending to be stayed

Reasoning

The Applicant relied on Order 42 Rule 6(2), which governs stay of execution, not stay of proceedings. The court found that with judgment delivered on 6th April 2018 there were no proceedings capable of being stayed, and that a court cannot grant an order not prayed for or unavailable in law.

p. 3
03

Whether the Applicant established grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

No; the alleged errors concerned matters already considered in the judgment and amounted to grounds of appeal, not review

Reasoning

The Applicant's complaints - that the court failed to note her marriage to the deceased son, the trust claim and her residence - were addressed in paragraphs 17 and 18 of the original judgment. Review requires self-evident error apparent on the face of the record, not a disputed view of the law or facts. A wrongful exercise of discretion is cured by appeal, not review.

Legal principles established

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  • The procedure for an advocate coming on record after judgment under Order 9 Rule 7 of the Civil Procedure Rules is mandatory and not a mere technicality
  • Inherent jurisdiction of the court cannot be invoked where the rules have provided for the procedure to be followed
  • A wrong conclusion of law, even if established, is a ground for appeal and not for review; a court cannot sit in appeal on its own judgment

Court orders

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  1. 1.The application dated 14th May 2019 is dismissed in its entirety with costs
  2. 2.Costs awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Civil Procedure ActSection 27(1)
  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 45 Rule 1(a)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 9 Rules 7, 9 and 10
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (8)

  • Michael Chelimo Kipkiru vs Julius Kiprop Kipkiru & Another
    Eldoret ELC No. 877 of 2012
  • Ragot Otieno & Company Advocates vs. National Bank of Kenya Limited
  • Caltex Oil Kenya Limited vs Rono Limited
  • National Bank of Kenya Limited vs Ndungu Njau
    [1997] eKLR
  • Mumias Outgrowers Company (1998) Ltd vs Mumias Sugar Company Ltd
    NRB HCCC No. 414 of 2008
  • Muchiri vs Attorney General & 3 Others
    (1991) KLR 516
  • Muyodi vs. Industrial and Commercial Development Corporation & Another
    (2006) 1 EA 243
  • Nyamogo & Nyamogo -vs- Kogo
    (2001) EA 174
Jurisdiction invoked
Sections 80, 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 45 Rule 1 of the Civil Procedure Rules

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, "Tapsabei Sigei Korir v Judy Chepkorir Koech [2022] KEELC 1359 (KLR)", Case Analysis (2022). ELC Case of 2014 (Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1359/eng@2022-02-17

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