Chepkwony v Bett & another (Environment & Land Case 39 of 2019) [2022] KEELC 2659 (KLR)
The bottom line
#Kenya's Environment and Land Court in Kericho dismissed a bid to revive a struck-out land suit, confirming that review is not a second chance to argue new theories.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's application satisfied the grounds for review under Order 45 Rule 1 of the Civil Procedure Rules
It did not; the applicant's assertion that the suit land was a public road of access was not new evidence unknown to him at the time of the ruling, and his recourse to public interest litigation was a second bite of the cherry for personal gain
Section 80 of the Civil Procedure Act confers the power of review while Order 45 Rule 1 restricts the grounds: discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, without unreasonable delay. The court found the applicant had raised no new matter; his invocation of public interest litigation could not mask a personal grievance, and such disguised litigation is not entertained.
Whether a claim framed as public interest litigation could override the succession law requirement of Letters of Administration before the beneficiaries of a deceased proprietor of land can be sued
No; public interest litigation cannot override succession law, and a cause of action against beneficiaries and dependants of a deceased land proprietor cannot be sustained without the requisite Letters of Administration
The court noted the defendants were mere beneficiaries and dependants of the estate of the deceased registered proprietor of parcel Kericho/Koiwa/686, with no capacity to defend the estate without a grant of Letters of Administration. The court also emphasised that it is bound by the pleadings and could not pronounce a claim or defence not made by the parties, as that would amount to determination without hearing and denial of justice.
Whether the court may adjudicate on matters not pleaded by the parties
The court is bound by the pleadings and cannot pronounce any claim or defence not made by the parties
The duty of the court is to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Pronouncing a claim or defence not made by the parties would be plunging into the realm of speculation, might aggrieve the parties, and would amount to a determination made without hearing the parties, leading to denial of justice.
Legal principles established
#- An error apparent on the face of the record for review purposes must be self-evident and not require elaborate argument; a different possible view by another judge is not a ground for review
- Relief not founded on the pleadings will not be given; the court is bound by the matters raised by the parties' pleadings
- Courts will not entertain false and frivolous public interest litigation filed out of mischief or for personal gain
- The grounds for review are discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay
Court orders
#- 1.Dismissal of the applicant's Notice of Motion dated 14th February 2022 seeking review and/or setting aside of the ruling of 18th November 2021
- 2.Costs of the application to the Defendants/Respondents
- Jurisdiction invoked
- Order 45 Rules 1 & 2 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chepkwony v Bett & another (Environment & Land Case 39 of 2019) [2022] KEELC 2659 (KLR)", Case Analysis (2022). Not stated in the judgment text provided (application dated 14th February 2022 in a suit whose number is not given). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2659/eng@2022-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.