Horticultural Crops Development Authority v Sakir Properties Limited & another;Ex parte Applicant: Double ESS Development Company Limited [2022] KEELC 1586 (KLR)
The bottom line
#A Kenyan land court set aside a 2020 judgment because a company that had already settled and left the case was wrongly still named in it.
What this practically means
#Executive summary
#Key legal issues
#Whether there was an error apparent on the face of the record
Yes - the judgment and consequential orders named the 3rd Defendant as a party notwithstanding that the suit against it had been wholly withdrawn by consent adopted on 6th October 2011
The court confirmed the consent order on the file, noting it recorded full and final settlement of all issues between the Plaintiff and the 3rd Defendant. The Plaintiff's failure to amend its further further amended plaint led to the Applicant being included in the judgment despite ceasing to be a party, which the court held was a self-evident error reviewable under Order 45 rule 1 without elaborate argument.
Whether the Applicant had locus standi to apply for review though no longer a party
Yes, because the judgment adversely affects it
Section 80 of the Civil Procedure Act allows any person who considers himself aggrieved by a decree or order to apply for review. The court rejected the Plaintiff's argument that the Applicant voluntarily left the suit and so could not complain, holding that being named and bound by the judgment gave it sufficient standing.
Whether the judgment was obtained through material non-disclosure
Yes - the Plaintiff failed to disclose that the 3rd Defendant had ceased to be a party
The court noted that the Plaintiff only served the 1st and 2nd Defendants by substituted service in 2020, showing awareness that the Applicant was no longer a party, yet its witness sought orders per the further further amended plaint without disclosing that fact. The court applied the GO tv authority on discharge of orders obtained by concealment.
What relief should issue on review
The judgment and all consequential orders were set aside/vacated in their entirety, but the suit was not dismissed
Although the Applicant sought outright dismissal of the suit, the court declined, reasoning that the Plaintiff retained an opportunity to decide how to proceed. Costs of the application were shared, each party bearing its own costs.
Legal principles established
#- Review is available under Section 80 of the Civil Procedure Act and Order 45 rule 1 where there is an error apparent on the face of the record
- Inclusion in a judgment of a party who had ceased to be a party pursuant to a consent withdrawal is an error apparent on the face of the record
- A person adversely affected by a judgment may seek review even though no longer a party to the proceedings
Court orders
#- 1.That the Judgment of this honourable court entered on 17th December 2020 is hereby reviewed to the effect that the said judgment together with all the consequential orders are hereby set aside and/or vacated in their entirely.
- 2.That each party do bear own costs.
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63(e), 80 and 100 of the Civil Procedure Act, Order 40 Rule 1, Order 45 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Horticultural Crops Development Authority v Sakir Properties Limited & another;Ex parte Applicant: Double ESS Development Company Limited [2022] KEELC 1586 (KLR)", Case Analysis (2022). Not stated in the excerpt (Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1586/eng@2022-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.