Erastus Ndege Machuke & 3 others v John Kiura Ngari & 7 others [2022] KEELC 1502 (KLR)
The bottom line
#A Kenyan land court corrected its own oversight, allowing a defendant's forgotten counter-claim, so a landowner must now vacate the disputed parcel within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether omission of the counter-claim from the judgment constitutes an error apparent on the face of the record justifying review
Yes - the court determined only the Plaintiffs' suit and omitted the counter-claim heard with it, a classic error attributable to inadvertence correctable on review
The suit and counter-claim were heard together, so the judgment ought to have determined both. The judgment dated 18th December 2020 considered only the Plaintiffs' claim and made no mention of the counter-claim. Following National Bank of Kenya Ltd v Ndungu Njau, the omission is self-evident and requires no elaborate argument, satisfying the threshold under Section 80 of the Civil Procedure Act and Order 45 Rules 1 & 2.
Whether the Plaintiffs' pending appeal bars the application for review
No - under Order 45 Rule 2, a non-appealing party may seek review notwithstanding another party's appeal unless the grounds are common
The Plaintiffs argued that the 1st Defendant lost the right of review once they filed an appeal, but cited no authority. Order 45 Rule 2 expressly permits a party who is not appealing to apply for review despite a pending appeal by another party, except where the ground of appeal is common to the applicant and appellant. The 1st Defendant's ground (omission of the counter-claim) was not the Plaintiffs' ground of appeal.
Whether the delay of about three months in filing the application was unreasonable
No - excluding the vacation period under Order 50 Rule 4, the actual delay was about one month and two weeks, not unreasonable
The judgment was delivered on 18th December 2020 and the application filed on 2nd March 2021. The period between 21st December 2020 and 9th January 2021 is excluded from computation of time under Order 50 Rule 4. The actual delay is therefore about one month and two weeks, which the court does not consider to constitute unreasonable delay for purposes of Order 45.
Whether the counter-claim for eviction should succeed on the merits
Yes - the 1st Defendant is the admitted registered proprietor and the Plaintiffs failed to prove the alleged trust, so eviction from Parcel 3683 follows
The Plaintiffs conceded the 1st Defendant's registration as proprietor of Parcels 3683 and 3684, contending only that registration was in trust for them. Having found in the main judgment that the Plaintiffs failed to demonstrate the trust and dismissed their claim, the eviction counter-claim against the 1st Plaintiff, who occupies Parcel 3683, must succeed.
Legal principles established
#- A review may be granted where the court needs to correct an error or omission that is self-evident and requires no elaborate argument
- A party who is not appealing may apply for review notwithstanding the pendency of an appeal by another party, except where the ground of appeal is common to both
Court orders
#- 1.The 1st Defendant's notice of motion dated 2nd March, 2021 for review is hereby allowed
- 2.The judgment dated 18th December, 2020 is reviewed by allowing the 1st Defendant's counter-claim
- 3.The 1st Plaintiff, Erastus Ndege Machuke, shall remove himself, his family members, servants, agent and properties from Title No. Mbeere/Kirima/3683 within 30 days from the date hereof in default of which he and his family members, servants and properties shall be forcibly removed therefrom
- 4.The prayer for a permanent injunction with respect to Titles No. Mbeere/Kirima/3683 and 3684 is declined
- 5.The 1st Defendant is awarded costs of the counter-claim against the 1st Plaintiff only
- 6.An amended decree shall issue incorporating the counter-claim
- 7.No order as to costs of the application for review since the error was occasioned by the court
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act (Cap. 21) and Order 45 Rules 1 & 2 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erastus Ndege Machuke & 3 others v John Kiura Ngari & 7 others [2022] KEELC 1502 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1502/eng@2022-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.