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ELCDismissedNot stated in the judgment text provided (application dated 14th February 2022 in a suit whose number is not given)· [2022] KEELC 2659 (KLR)

Chepkwony v Bett & another (Environment & Land Case 39 of 2019) [2022] KEELC 2659 (KLR)

Environment and Land Court
21 July 2022
2,457 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff's suit had been struck out by a ruling delivered on 18th November 2021 on the ground that the defendants lacked locus standi to be sued, the subject land parcel Kericho/Koiwa/686 forming part of the estate of the deceased Kipilongei Arap Langat for which no Letters of Administration had been taken out. The plaintiff, Joel Kiprotich Chepkwony, then moved the court by an application dated 14th February 2022 under Order 45 Rules 1 & 2 of the Civil Procedure Rules, Section 80 of the Civil Procedure Act and various constitutional provisions, seeking review and/or setting aside of that ruling and stay of execution, contending that the subject matter was a public road of access rather than part of the deceased's estate, and that striking out the suit had condemned him unheard. The defendants opposed, arguing they were mere beneficiaries and dependants of the estate with no capacity to defend it without a grant, and that the plaintiff's public road claim was mala fide and fell short of the definition of a public road under Section 12(3) of the Public Roads and Roads of Access Act. Applying Order 45 Rule 1, and endorsing the authorities on review and on public interest litigation, the court held that the plaintiff's ground was not new evidence within the meaning of the rule, and that his invocation of public interest litigation was an attempt to have a second bite of the cherry for personal gain, which the court would not entertain. The application was dismissed with costs.

Key legal issues

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01

Whether the applicant's application satisfied the grounds for review under Order 45 Rule 1 of the Civil Procedure Rules

Holding

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

Reasoning

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.

p. 5
02

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

Holding

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

Reasoning

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.

p. 3
03

Whether the court may adjudicate on matters not pleaded by the parties

Holding

The court is bound by the pleadings and cannot pronounce any claim or defence not made by the parties

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs of the application to the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1 & 2
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Law of Succession ActSections 45, 5.3(1) (sic) and 79
  • Constitution of KenyaArticles 21(1), 22(1)(3)(a-e)(4), 23(1)(3), 24(1), 39(1)(3), 159(d), 162(2)
  • Land ActSections 149 & 150
  • Public Roads and Roads of Access ActSection 12(3)

Cases cited (4)

  • National Bank of Kenya Limited v Ndungu Njau
    (1997) eKLR
  • Gandy vs Caspar Air Charters Limited
    [1956] 23 EACA, 139
  • Okiya Omtatah Okiti vs. Communications Authority of Kenya & 14 Others
    [2015] eKLR
  • Truth Justice and Reconciliation Commission vs. Chief Justice of the Republic of Kenya & Another
    [2012] KLR
Jurisdiction invoked
Order 45 Rules 1 & 2 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (review jurisdiction)

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, "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.