Tapsabei Sigei Korir v Judy Chepkorir Koech [2022] KEELC 1359 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the firm of P Sang & Company Advocates were properly on record for the Defendant
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
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.
Whether stay of proceedings ought to issue
No; judgment had been delivered and there were no proceedings pending to be stayed
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.
Whether the Applicant established grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1
No; the alleged errors concerned matters already considered in the judgment and amounted to grounds of appeal, not review
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
#- 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
#- 1.The application dated 14th May 2019 is dismissed in its entirety with costs
- 2.Costs awarded to the Plaintiff/Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.