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ELCDismissedKisii HCCC No. 177 of 1991 (Notice of Motion dated 5th July 2021)· [2022] KEELC 2007 (KLR)

Joseph Otieno Ochere v Akongo Owino [2022] KEELC 2007 (KLR)

Environment and Land Court
25 January 2022
2,339 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 confirmed you cannot ask a judge to review their own review — a second review attempt over disputed land was struck out.

What this practically means

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Executive summary

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The defendant, Akong'o Owino, moved the court by Notice of Motion dated 5th July 2021 under Order 45 and sections 34 and 80 of the Civil Procedure Act seeking review and setting aside of the court's rulings of 26th May 2021 and 14th May 2018, and cancellation of the resultant subdivisions of LR GEM/KAJULU/37. He argued there was an error apparent on the face of the record and new evidence showing the plaintiff had obtained registration fraudulently, contrary to the 1997 judgment of Mbaluto J which dismissed the plaintiff's claim for eviction, injunction and mesne profits. The plaintiff, acting in person, opposed the application as res judicata, an abuse of process and barred by functus officio, noting inordinate delay and the absence of new evidence. The application was originally lodged at Migori ELC and transferred to Homa Bay. The court condensed the issues to whether the application attained the conditions for review. It traced the litigation history: the 1997 dismissal, the anomalous orders of 5th November 1998, their review on 31st January 2011 by Makhandia J, the ex parte review orders of 14th May 2018, and the dismissal of a further review on 26th May 2021. The court held that a further review was barred by Order 45 Rule 6, which prohibits review of an order made on an application for review, and that the alleged new evidence failed the Kaiza v Kaiza test. The Notice of Motion was struck out, with a 30-day stay of execution and each party bearing own costs.

Key legal issues

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01

Whether the rulings of 14th May 2018 and 26th May 2021 can be reviewed

Holding

No. The 14th May 2018 orders were themselves a review of the orders of 5th November 1998, and the 26th May 2021 ruling was a review of the 2018 orders; a further review is barred by Order 45 Rule 6

Reasoning

The court traced the history: the 2018 ruling was a review of the 1998 orders (which were themselves made in error), and the 2021 ruling disallowed review of the 2018 orders. Order 45 Rule 6 expressly prohibits an application for review of an order made on an application for review, so the court lacked power to entertain the instant application.

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02

Whether there is new and important evidence warranting review

Holding

The asserted new evidence did not meet the Kaiza v Kaiza threshold of due diligence and lack of knowledge

Reasoning

Applying Kaiza v Kaiza, the court noted that not every new fact qualifies for review; the applicant had to show due diligence and that the fact was not within his knowledge or could not be produced when the orders were made. The court found the conditions for review unattained.

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Legal principles established

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  • An application for review of an order made on an application for review is barred under Order 45 Rule 6
  • Not every new fact qualifies for review; the applicant must show due diligence and that the fact was not within his knowledge

Court orders

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  1. 1.Stay of execution of the ruling and orders within the next 30 days from the date of the ruling, under sections 3 and 13(7)(a) of the Environment and Land Court Act, 2015 and sections 1, 1A, 3 and 3A of the Civil Procedure Act
  2. 2.The Notice of Motion dated 5th July 2021 struck out
  3. 3.Each party to bear own costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2020Order 22 Rule 22
  • Civil Procedure Rules, 2020Order 45 Rules 1, 2 and 3(2); Order 45 Rule 6
  • Civil Procedure Rules, 2010Order 51 Rule 16
  • Civil Procedure Act, Chapter 21 Laws of Kenyasections 34 and 80; sections 1, 1A, 3 and 3A
  • Constitution of Kenya, 2010Articles 6(3), 48, 50 and 40
  • Environment and Land Court Act, 2015 (2011)sections 3 and 13(7)(a)

Cases cited (5)

  • Nyamongo and Nyamongo v Kogo
    (2001) EA 174
  • Muyondi v Industrial and Commercial Development Corporation and another
    (2006) 1 EA 243
  • Francis Njoroge v Stephen Maina Kamore
    (2013) eKLR
  • Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Limited and 3 others
    (2017) eKLR
  • Kaiza v Kaiza
    2009 KLR 499
Jurisdiction invoked
Sections 34 and 80 of the Civil Procedure Act (Cap 21) and Order 22 Rule 22 and Order 45 Rules 1, 2, 3(2) of the Civil Procedure Rules, 2020; sections 3 and 13(7)(a) of the Environment and Land Court Act, 2015

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, "Joseph Otieno Ochere v Akongo Owino [2022] KEELC 2007 (KLR)", Case Analysis (2022). Kisii HCCC No. 177 of 1991 (Notice of Motion dated 5th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2007/eng@2022-01-25

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