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ELCDismissedNot stated on the face of the judgment (ruling on Notice of Motion dated 16/03/2022)· [2022] KEELC 3193 (KLR)

Maru v Wafula (Environment & Land Case 103 of 2008) [2022] KEELC 3193 (KLR)

Environment and Land Court
6 June 2022
6,848 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a review application as an abuse of process, confirming that losing a ruling means you should appeal, not keep re-arguing it.

What this practically means

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Executive summary

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The Applicant, Frank Wafula, moved the Environment and Land Court at Kitale by Notice of Motion dated 16/03/2022 under Sections 1A, 1B, 3, 3A, 80 and 63(c) of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules 2010 and Articles 47, 48, 50 and 159(2) of the Constitution, seeking review and setting aside of the court's ruling of 10/03/2022 and all consequential orders. He alleged errors apparent on the face of the record, sufficient reason, and later, discovery of new matter - chiefly that former advocates omitted to object to a Notice of Appointment by R.E. Nyamu & Co. Advocates to act alongside Kiarie & Co. Advocates, and complaints about a misplaced phrase, typographical errors, and alleged reliance on incompetent affidavits and submissions. The Respondent, Mansukhlal Jesang Maru, opposed the application as baseless, a delaying tactic and an abuse of process. Framing two issues (merit, and orders/costs), the court restated the law of review under Section 80 and Order 45 Rule 1 and the established tests for error apparent on the face of the record, discovery of new matter, and sufficient reason. It held that the challenged conclusions were merit-based findings, not self-evident errors; that the alleged new matter was within the Applicant's knowledge all along; that the court had become functus officio on points already decided, the remedy being appeal; and that the Kakamega Civil Appeal relied on was persuasive and distinguishable. Concluding the application was vexatious and an abuse of process, the court dismissed it with costs to the Respondents, cautioned the Applicant against disrespectful conduct, and directed the suit to proceed as scheduled.

Key legal issues

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01

Whether errors apparent on the face of the record were established to warrant review of the ruling of 10/03/2022

Holding

No error apparent on the face of the record was established; the challenged conclusions were merit-based findings and misreadings by the Applicant do not constitute such error

Reasoning

The court distinguished an error apparent on the record (an accidental slip, omission or skipping of material) from an erroneous decision. The Applicant's complaints related to merit-based findings on which the court had exercised its discretion judiciously. Where another view was possible or the decision was merely wrong, the remedy is appeal, not review; review would amount to the judge sitting on appeal over his own decision.

p. 8
02

Whether discovery of new and important matter was shown

Holding

No; the alleged discovery (that former advocates omitted to object to the Notice of Appointment of Advocates) was not new and was within the Applicant's knowledge all along

Reasoning

The Applicant had raised the issue of the Notice of Appointment being improperly on record in several prior applications, so the matter could not qualify as new and important matter discovered after the ruling. He also did not state when he discovered it. The application was, however, filed within six days of the ruling, so no unreasonable delay arose.

p. 6
03

Whether there was any other sufficient reason for review

Holding

No; the grounds advanced re-litigated matters on which the court was functus officio and relied on a persuasive, distinguishable Kakamega High Court decision not binding on the court

Reasoning

The Applicant re-raised issues on professionalism of advocates and propriety of a firm coming on record that the court had already determined, making him functus officio; his recourse was appeal. The Kakamega Civil Appeal he invoked was persuasive only, with distinguishable facts. The conduct amounted to abuse of process designed to delay the suit.

p. 6
04

Whether the application was an abuse of court process

Holding

Yes; the application was one of many designed to delay and vex the court and the opponent, and was dismissed with costs

Reasoning

Applying Muchanga Investments and Stephen Somek Takwenyi, the court found the Applicant employed the judicial process to the irritation and annoyance of his opponent and the efficient administration of justice, through a multiplicity of frivolous, vexatious applications on issues already determined. The court also cautioned the Applicant against disrespectful and derogatory conduct towards the court and counsel.

p. 10

Legal principles established

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  • An error apparent on the face of the record must be self-evident and not require elaborate argument or long-drawn reasoning to establish; a mere erroneous decision or a possible different view is not a ground for review
  • 'Any other sufficient reason' for review must be analogous to the enumerated grounds of error on the face of the record and discovery of new matter
  • New and important matter must be material that could not have been discovered with due diligence before the decision sought to be reviewed
  • Once a court has made its finding it becomes functus officio on that point; the remedy is appeal, not repeated review applications
  • Submissions cannot be used as a vehicle to introduce evidence in a case
  • Courts possess inherent jurisdiction to prevent abuse of their process, including by vexatious litigants

Court orders

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  1. 1.The Application dated 16/03/2022 is dismissed with costs to the Respondents
  2. 2.The suit, which was fixed for further hearing, should proceed as scheduled
  3. 3.The Applicant is cautioned against engaging in disrespectful conduct henceforth, failing which sanctions may follow and scandalous or abusive paragraphs struck out

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 80, 63(c)
  • Civil Procedure Rules 2010Order 45 Rule 1
  • Constitution of Kenya 2010Articles 47(1) and (2), 48, 50(1) and (4), 159(1) and 159(2)

Cases cited (13)

  • Muyodi vs. Industrial and Commercial Development Corporation & Another
    [2006] 1 EA 243
  • Nyamogo & Nyamogo vs Kogo
    [2001] EA 174
  • Paul Mwaniki vs. National Hospital Insurance Fund Board of Management
    [2020] eKLR
  • Republic vs. Cabinet Secretary for Interior and Co-Ordination of National Government Ex Parte Abulahi Said Salad
    [2019] eKLR
  • Sadar Mohamed vs Charan Singh and Another
    Not stated
  • Tokesi Mambili and Others vs Simion Litsanga
    Not stated
  • Stephen Gathua Kimani vs. Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2016] eKLR
  • Republic -v- Advocates Disciplinary Tribunal Exparte Apollo Mboya
    [2019] eKLR
  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Muchanga Investments Limited vs. Safaris Unlimited (Africa) Ltd & 2 Others
    Civil Appeal No. 25 of 2002 [2009] KLR 229
  • Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 Others
    Nairobi (Milimani) HCCC No. 363 of 2009
  • Kakamega High Court Civil Appeal No. 97 of 1999
    Civil Appeal No. 97 of 1999
  • Supreme Court of Kenya Petition No. 39 of 2018
    Petition No. 39 of 2018
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 80 and 63(c) of the Civil Procedure Act; Order 45 Rule 1 of the Civil Procedure Rules 2010; Articles 47(1) and (2), 48, 50(1) and (4) and 159(2) of the Constitution

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, "Maru v Wafula (Environment & Land Case 103 of 2008) [2022] KEELC 3193 (KLR)", Case Analysis (2022). Not stated on the face of the judgment (ruling on Notice of Motion dated 16/03/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3193/eng@2022-06-06

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