Maru v Wafula (Environment & Land Case 103 of 2008) [2022] KEELC 3193 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether errors apparent on the face of the record were established to warrant review of the ruling of 10/03/2022
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
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.
Whether discovery of new and important matter was shown
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
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.
Whether there was any other sufficient reason for review
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
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.
Whether the application was an abuse of court process
Yes; the application was one of many designed to delay and vex the court and the opponent, and was dismissed with costs
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.
Legal principles established
#- 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
#- 1.The Application dated 16/03/2022 is dismissed with costs to the Respondents
- 2.The suit, which was fixed for further hearing, should proceed as scheduled
- 3.The Applicant is cautioned against engaging in disrespectful conduct henceforth, failing which sanctions may follow and scandalous or abusive paragraphs struck out
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.