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ELCDismissedMemorandum of Appeal filed 13 July 2021· [2022] KEELC 1718 (KLR)

Wilfred Murungi Mboroki & 16 others v Mutua Mugambi M`Rewa & 2 others [2022] KEELC 1718 (KLR)

Environment and Land Court
9 February 2022
CYC. K. Yano
2,078 words in judgment
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The bottom line

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The Environment and Land Court at Chuka dismissed 17 landowners' appeal, confirming that complaints about a judge's errors belong in an appeal, not a review application.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Chuka against a ruling of Hon. J. M. Njoroge, C.M. delivered on 16th June 2021, by which the trial court had dismissed the appellants' application for review of an earlier ruling of 14th October 2020 striking out their suit as res judicata of tribunal proceedings before land adjudication. The appellants, claiming that their land was registered land whose titles had been fraudulently issued to undeserving persons contrary to section 26(1) of the Land Registration Act, contended that the magistrate misconstrued their suit as a challenge to the adjudication process and the minister's decision rather than an action in fraud. The respondents opposed, arguing the suit was a disguised challenge to a minister's decision under Cap 283 and 284, that judicial review was the proper route, and that the court was functus officio. C. K. Yano, J. noted the ruling under appeal was missing from the record of appeal but invoked the court's inherent jurisdiction, the overriding objective and Article 159(2)(d) to proceed. Framing two issues - whether the review application met the statutory threshold and whether its dismissal was justified - the court held that the review failed to satisfy section 80 of the Civil Procedure Act and Order 45 rule 1, that the appellants' real complaint was that the magistrate erred, and that the remedy for error is appeal, not review, applying the Otieno, Ragot decision. The appeal was dismissed with costs to the 1st Respondent, borne by the appellants jointly and severally.

Key legal issues

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01

Threshold for review under Section 80 CPA and Order 45 rule 1

Holding

The review application must satisfy the statutory grounds - discovery of new and important matter, error apparent on the face of the record, or other sufficient reason - and be made without unreasonable delay

Reasoning

The court set out the statutory grounds for review and held that the appellants' complaint was essentially that the magistrate's ruling of 14th October 2020 was erroneous. A complaint of error is a matter for appeal, not review. The magistrate was therefore justified in finding the application incompetent and dismissing it.

p. 3
02

Whether the learned magistrate was justified in dismissing the application for review

Holding

Yes - the application failed to meet the threshold in Order 45 rule 1 and the appeal against that dismissal has no merit

Reasoning

The court perused the ruling of 14th October 2020 which was the subject of review, noted the magistrate had correctly captured the pleadings and found no reviewable grounds, and applied the Otieno, Ragot authority that error-based complaints belong on appeal. The magistrate's analysis was correct and the appellate court declined to interfere.

p. 4

Legal principles established

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  • The court's discretion to grant review under Section 80 of the Civil Procedure Act and Order 45 rule 1 must be exercised judiciously and not capriciously, on sufficient reason being shown
  • Where a party's complaint is that the judge/magistrate made an error, the proper remedy is an appeal, not an application for review

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The 1st Respondent shall have the costs of the Appeal to be borne by the Appellants jointly and severally

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 rule 1
  • Constitution of Kenya 2010Article 159(2)(d)
  • Land Registration Act 2012Section 26(1)
  • Land Adjudication Act (Cap 283) and related (Cap 284) Laws of Kenyanull

Cases cited (1)

  • Otieno, Ragot & Company Advocates –vs- National Bank of Kenya Limited
    [2020] eKLR
On appeal from
Magistrates' Court (Chief Magistrate)
Ruling delivered in the suit before Hon. J. M. Njoroge
Jurisdiction invoked
Appeal against the ruling of the trial magistrate; inherent jurisdiction of the court as read with the overriding objective in the Civil Procedure Act and Article 159(2)(d) of the Constitution invoked

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, "Wilfred Murungi Mboroki & 16 others v Mutua Mugambi M`Rewa & 2 others [2022] KEELC 1718 (KLR)", Case Analysis (2022). Memorandum of Appeal filed 13 July 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1718/eng@2022-02-09

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