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ELCPartially AllowedJudicial Review Miscellaneous Application dated 3rd January 2017· [2022] KEELC 1779 (KLR)

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)

Environment and Land Court
31 January 2022
4,502 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling by the Environment and Land Court at Kitui (L. G. Kimani J) on the Interested Party's Notice of Motion dated 10th February 2020 seeking review of the Court's judgment of 18th October 2019, in which Hon. Angote J had granted judicial review orders quashing the Cabinet Secretary's decision of 10th February 2016. The original judgment had found that the Interested Party's appeal to the Minister against a Land Adjudication Officer's decision of 7th October 1986 was filed in 1989 - as shown by the serial number 'Appeal Case No. 14 of 1989' - well beyond the 60 days allowed by Section 29(1) of the Land Adjudication Act, rendering the Minister's decision a nullity. The Applicant sought review on grounds of newly discovered evidence (an official receipt dated 22nd October 1986 and a Form of Appeal dated 21st October 1986) and an error apparent on the face of the record, contending the appeal was filed within 21 days of the decision and the 1989 numbering was a registry error. The Court dismissed Prayer 1, holding the Applicant himself drew, signed and paid for the appeal, so the filing date was within his knowledge and strict proof under Order 45 Rule 3(2) was lacking. However, Prayer 2 succeeded: the Minister's own judgment recorded the appeal as lodged on 22nd October 1986, demonstrating a numbering error and an error apparent on the face of the record. The delay of about four months was held not inordinate. The judgment of 18th October 2019 was reviewed and set aside, and the Court directed a re-hearing under Order 45 rule 5. No costs order was made.

Key legal issues

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01

Whether the official receipt and Form of Appeal dated October 1986 constituted new and important matter discoverable after due diligence

Holding

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).

Reasoning

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.

p. 4
02

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

Holding

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.

Reasoning

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.

p. 5
03

Whether the Applicant was guilty of unreasonable delay in bringing the review application

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Prayer 1 of the application dated 10th February 2020 (review on discovery of new evidence) is dismissed
  2. 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. 3.The Court to proceed to re-hear the matter as provided under Order 45, rule 5 of the Civil Procedure Rules

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules (2010)Order 45 Rules 1, 2, 3(2) and 5
  • Civil Procedure Rules (2010)Order 51(1)
  • Land Adjudication ActSection 29(1)
  • Constitution of KenyaArticle 47
  • Land Control Act

Cases cited (11)

  • Nyamogo v Nyamogo
  • Nyamogo & Nyamogo v Kogo
    [2001] EA 174
  • Zablon Mokua v Solomon M. Choti & 3 others
    [2016] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, High Court at Nairobi Misc. Application 317 of 2018
  • Afpack Enterprises Limited v Punita Javant Acharya (Suing as the Administrator of the Estate of the Late Suchila Anantrai Raval)
    (2018) eKLR
  • YMG v KN (Suing through his mother and next friend NKM)
    (2021) eKLR
  • Otieno, Ragot & Company Advocates v National Bank of Kenya Ltd
    (2020) eKLR
  • Francis Mwangi Kimani v Daniel Kimani Njihia
    (2019) eKLR
  • Joshua Ngatu v. Jenae Mpinda & 3 others
    (2019) eKLR
  • Andrew Shimbiro v Sammy Talam
    [2021] eKLR, Land Case 46 of 2017
  • Thungabhadra Industries Ltd. v. Govt. of A.P.
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

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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, "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.