Ikakor & 4 others v Amila
The bottom line
#A Kenyan court dismissed landowners' attempt to revive a rejected appeal, confirming that unexplained delay and arguing the law was wrong cannot justify a review.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of certified judgment for summary rejection under Section 79B
The absence of an extracted formal decree did not bar summary rejection; the certified judgment sufficed for perusal and rejection
Section 2 of the Civil Procedure Act provides that for purposes of appeal, 'decree' includes judgment, and a judgment is appealable notwithstanding that a formal decree may not have been drawn up. The full record of appeal is only prepared after admission under Order 42 Rule 13. Therefore the court had jurisdiction to reject the appeal summarily on February 22, 2021.
Whether the power of summary rejection under Section 79B was properly exercised
Yes; although to be used sparingly, the power exists and the in personam memorandum raised no arguable grounds given the respondent's registered title and the appellants' failure to file statements
The Court of Appeal in Mashere requires sparing use in the clearest cases, but sparingly is not a caveat against exercise. Unlike Hamzaali, where six arguable grounds were drafted by counsel, this memorandum was filed in person and the trial court had found the respondent to be the registered proprietor with a title deed, with no rebuttal statements filed by the applicants.
Whether the review application met Section 80/Order 45 grounds
No; no new matter, no error apparent on the face of the record, and the application was filed after an unexplained 8-month delay
The order was extracted on March 9, 2021 and the applicants must have known soon thereafter, yet the motion was only filed in December 2021. Further, the motion cited no new and important matter or error apparent on the record; counsel's claim of misapprehension of law amounts to an error of law, which per National Bank of Kenya v Ndungu Njau and Pancras T Swai cannot ground review.
Whether submissions can substitute for evidence in a review application
No; submissions are not evidence and averments of misapprehension of law should have been in the supporting affidavit
The court held that even assuming misapprehension of law, that claim should have been pleaded in the supporting affidavit because submissions are not evidence upon which the court can rely to make a decision. The application therefore failed both on substance and on the manner in which the grounds were presented.
Legal principles established
#- For purposes of summary rejection under Section 79B, the memorandum of appeal together with a certified judgment suffices; a formal decree need not have been extracted
- An erroneous view of law is a ground of appeal, not a ground for review
- A review application must be made without unreasonable delay, and unexplained delay disentitles the applicant
Court orders
#- 1.The Notice of Motion dated November 25, 2021 is dismissed
- 2.Costs of the application to the Respondent
- On appeal from
- Senior Principal Magistrate's Court, Kimilili
- Kimilili SPM CCC No 47 of 2011
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 51 Rule 1 and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ikakor & 4 others v Amila", Case Analysis (2022). Environment and Land Appeal 6 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14770/eng@2022-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.