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ELCDismissedNotice of Motion dated July 19, 2021 (arising from the Petition decided July 19, 2019)· [2022] KEELC 2611 (KLR)

Ogoti v Chief Magistrate Court, Kisii & 5 others (Environment & Land Petition 9 of 2014) [2022] KEELC 2611 (KLR)

Environment and Land Court
6 July 2022
2,895 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisii dismissed a two-year-late review application, confirming that courts cannot reopen decided land cases without new evidence, an obvious error, or a valid reason.

What this practically means

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Executive summary

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The 4th to 6th Respondents in a land petition (led by Evans Onchombo Nyaigoti) filed a notice of motion dated July 19, 2021 seeking a stay of execution of the judgment of July 19, 2019 and a review of that judgment, which had cancelled their titles to LR No. Nyaribari Chache B/B/Boburia/9154, 9155 and 9156 and restored the register to the Petitioner. They claimed they had purchased portions of the original parcel LR No. Nyaribari Chache B/B/Boburia/1429 from the late Aligisina Bosibori Kinaro, who died before transfer, and that the suit properties had been obtained via a Land Disputes Tribunal decree without any succession process. The Petitioner opposed, arguing the court was functus officio, the application was late and did not meet Order 45 requirements. The court framed two issues: whether the Order 45 requirements for review were met, and whether the court had jurisdiction. On the first, it held the alleged new matter (the succession point) was within the Applicants' knowledge all along, no error apparent on the face of the record or other sufficient reason was shown, and the two-year unexplained delay was fatal. On jurisdiction, even if the thresholds were met, the Petition had been heard and determined so the court was functus officio; the Applicants were referred back to the earlier advice to pursue their rights afresh. The application was dismissed with costs to the Petitioner.

Key legal issues

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01

Whether the requirements for review under Order 45 were met

Holding

They were not: the alleged 'new matter' (the absence of a succession process) was within the Applicants' knowledge all along, no error apparent on the face of the record was shown, and the application filed exactly two years after judgment was late with unexplained delay.

Reasoning

The Applicants claimed the failure to consider the succession of Aligisina Bosibori Kinaro's estate was new and important matter. The court found this issue was at the centre of their claim since they alleged they purchased from the deceased; they had also been accorded time to file documents during the suit but failed to comply. No mistake on the record or other sufficient reason was demonstrated.

p. 6
02

Whether the court had jurisdiction to entertain the application

Holding

Even if the Order 45 thresholds had been met, the court was functus officio because the Petition had been heard and determined on the merits; the Applicants must pursue their perceived rights afresh.

Reasoning

The original Petition concerned only whether the Land Disputes Tribunal had jurisdiction and whether the subsequent decrees were valid. That was determined. The court quoted the earlier judgment advising the Applicants to 'go back to the drawing board' and held that a review application is not one of the ways to pursue those rights.

p. 7

Legal principles established

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  • A court may review its orders only on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and the application must be made without undue delay.
  • A court that has heard and determined a suit becomes functus officio and cannot reopen the matters determined by way of an application for review.
  • A party pursuing a genuine claim through a flawed, illegal process cannot have that illegality sanitized by the court.

Court orders

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  1. 1.The application for review and stay of execution is disallowed with costs to the Petitioner.

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 45 Rules 1, 2 & 3
  • Land Disputes Tribunal Act No. 18 of 1990Sections 3(1) and 7
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 (review jurisdiction of the court that passed the decree)

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, "Ogoti v Chief Magistrate Court, Kisii & 5 others (Environment & Land Petition 9 of 2014) [2022] KEELC 2611 (KLR)", Case Analysis (2022). Notice of Motion dated July 19, 2021 (arising from the Petition decided July 19, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2611/eng@2022-07-06

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