Republic v Cabinet Secretary for Land, Housing and Urban Development & 2 others Exparte Onesmus Kimanzi Musili & 2 others; Francis Nzeli Maundu (Interested Party) [2022] KEELC 1779 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside its own 2019 land ruling because of a simple filing-date error, and the case will now be heard afresh.
What this practically means
#Executive summary
#Key legal issues
#Whether the official receipt and Form of Appeal dated October 1986 constituted new and important matter discoverable after due diligence
The documents do not amount to new evidence because the Applicant himself drew, signed and paid for the appeal filing, so the date of filing was within his knowledge; the ground failed for lack of strict proof under Order 45 Rule 3(2).
Order 45 Rule 1 requires that new matter relied on for review must be matter which, after exercise of due diligence, was not within the applicant's knowledge or could not be produced when the decree was passed. The Applicant alleged he drew and signed the Form of Appeal and paid for it, obtaining a receipt. A person cannot claim ignorance of a date arising from his own act of filing. Order 45 Rule 3(2) demands strict proof of such allegations, which was not provided.
Whether there was an error apparent on the face of the record in the judgment of 18th October 2019 regarding the year the appeal was filed
Yes. The Minister's judgment itself recorded that the appeal was lodged on 22nd October 1986, showing the case number 'Appeal Case No. 14 of 1989' was a numbering error; the error in the court's judgment was apparent on the face of the record and justified review.
The Minister's judgment, delivered by the Deputy County Commissioner Kitui, contained passages noting that the appeal was lodged on 22nd October 1986 and that there was an active appeal before the subdivision in 1988. That evidence was already on the record before this Court. The finding that the appeal was filed in 1989 rested on a mis-numbered case heading. Since the error was self-evident without lengthy debate or reasoning, it satisfied the test for an error apparent on the face of the record under Order 45 Rule 1 and Section 80 of the Civil Procedure Act.
Whether the Applicant was guilty of unreasonable delay in bringing the review application
No. Judgment was delivered on 18th October 2019 and the application filed on 12th February 2020; the Applicant explained he was tracing documents from the Minister's offices, and the delay was held not to be inordinate.
While the Ex-parte Applicants argued indolence and laches, citing authority that equity aids the vigilant, the Court accepted the Applicant's explanation that he had a long and difficult time tracing the receipt and appeal form from the offices of the Minister, including the holiday season. The explanation was contained in the supporting affidavit. The Court was satisfied there was sufficient reason for the delay and that the delay of about four months was not inordinate, so the application was brought without unreasonable delay as required by Order 45 Rule 1.
Legal principles established
#- An error apparent on the face of the record exists where the error is evident per se and does not require detailed examination or long-drawn reasoning; a review is not an appeal in disguise.
- An application for review on the ground of discovery of new matter or evidence requires strict proof that the matter was not within the applicant's knowledge and could not be adduced with due diligence.
Court orders
#- 1.Prayer 1 of the application dated 10th February 2020 (review on discovery of new evidence) is dismissed
- 2.Prayer 2 of the application (review on account of error apparent on the face of the record) is allowed and the judgment entered on 18th October 2019 is reviewed and set aside
- 3.The Court to proceed to re-hear the matter as provided under Order 45, rule 5 of the Civil Procedure Rules
- Jurisdiction invoked
- Sections 80, 1A, 1B and 3A of the Civil Procedure Act and Order 45 Rules 1 and 2 and Order 51(1) of the Civil Procedure Rules (2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Cabinet Secretary for Land, Housing and Urban Development & 2 others Exparte Onesmus Kimanzi Musili & 2 others; Francis Nzeli Maundu (Interested Party) [2022] KEELC 1779 (KLR)", Case Analysis (2022). Judicial Review Miscellaneous Application dated 3rd January 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1779/eng@2022-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.