Kaos & 72 others v Cherugut & 84 others (Environment & Land Case 50 of 2017) [2022] KEELC 3593 (KLR)
The bottom line
#The Kitale Environment and Land Court refused a defendant's bid to split a group payment order, confirming review applications cannot be used to renegotiate court orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the 70th Defendant's application for review and setting aside of the conditional deposit orders of 01/03/2022 met the thresholds in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
The application failed: no new matter, error apparent or sufficient reason was shown; the Applicant was merely renegotiating the Court's discretionary orders, which the Court cannot entertain as it is functus officio; the proper recourse was appeal
The court had deliberately fixed the joint and several deposit of Kshs. 3,650,000.00 based on the damages of Kshs. 50,000.00 awarded against each of the Defendants. The Applicant's claim that other Defendants were destitute was unsubstantiated and unpleaded before the Court. Permitting individual deposits would sever a joint and several judgment and discriminate against some parties, contrary to Article 27(1). Filing six days before the lapse of the 21-day period evidenced a delaying tactic.
Whether severing compliance with a joint and several conditional order among several Defendants is permissible
It is not: allowing some Defendants to deposit individually while the judgment remains intact against others would be discriminatory and unconstitutional
The judgment of 27/05/2021 and the conditional setting-aside orders of 01/03/2022 were joint and several because the Defendants jointly applied to set aside the judgment. Permitting individual compliance would create absurdities as to who could participate in any appeal and would amount to unequal treatment prohibited by Article 27(1) of the Constitution.
Costs of the application
Costs awarded to the Respondents (Plaintiffs) as the application was unmeritorious and an abuse of the court's process
Having found the application both unmeritorious and an abuse of the process of the court, and having declined to dwell on the competence issue under Order 9 Rule 9 as urged by the Respondents, the court exercised its discretion on costs in favour of the successful Respondents.
Legal principles established
#- Review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules lies only on discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason, and must be brought without undue delay
- A court that has exercised its discretion and issued conditional orders becomes functus officio; an aggrieved party's recourse is appeal, not renegotiation of the orders by review
- Parties against whom a joint and several judgment is entered cannot be permitted to isolate themselves individually and comply with conditional setting-aside orders on unequal terms, as that would contravene Article 27(1) of the Constitution
Court orders
#- 1.The 70th Defendant's Notice of Motion dated 16/03/2022 seeking review and setting aside of the orders of 01/03/2022 is dismissed
- 2.Costs of the Application awarded to the Respondents (Plaintiffs)
- Jurisdiction invoked
- Sections 1, 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and Order 45 Rule 1(a), Order 22 Rule 22, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaos & 72 others v Cherugut & 84 others (Environment & Land Case 50 of 2017) [2022] KEELC 3593 (KLR)", Case Analysis (2022). Not stated in judgment (70th Defendant's Notice of Motion dated 16/03/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3593/eng@2022-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.