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ELCDismissedEnvironment and Land Appeal 6 of 2019· [2022] KEELC 14770 (KLR)

Ikakor & 4 others v Amila

Environment and Land Court
17 November 2022
3,683 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by B.N. Olao J of the Environment and Land Court at Busia determines a Notice of Motion dated November 25, 2021 by the 2nd and 3rd Appellants, Ayub Ikakor and Isaac Ikakor, seeking review and setting aside of the court's order of February 22, 2021 summarily rejecting their appeal under Section 79B of the Civil Procedure Act, and reinstatement of their Memorandum of Appeal. The appeal challenged the judgment of Hon DO Onyango (SPM) in Kimilili SPM CCC No 47 of 2011, which had granted eviction over land parcel Elgon/Kaptama/333 in favour of the registered proprietor, Benard Ojilong Amila. The applicants argued that the appeal was rejected prematurely because no certified decree or record of appeal had been filed, contrary to Order 42 Rule 2, and that the court misapprehended the law. The respondent opposed the application as incompetent and designed to delay recovery of costs. The court held that under Section 2 of the Civil Procedure Act, a judgment suffices for purposes of appeal even where no formal decree has been drawn up, so the certified judgment was adequate for summary rejection; that the power to reject summarily, though exercised sparingly, was properly invoked given the memorandum's unarguable grounds; that the 8-month delay in filing the review was unexplained and unreasonable; and that an alleged error of law is a ground of appeal, not review, citing National Bank of Kenya v Ndungu Njau and Pancras T Swai. The application was dismissed with costs to the respondent.

Key legal issues

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01

Sufficiency of certified judgment for summary rejection under Section 79B

Holding

The absence of an extracted formal decree did not bar summary rejection; the certified judgment sufficed for perusal and rejection

Reasoning

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.

p. 5
02

Whether the power of summary rejection under Section 79B was properly exercised

Holding

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

Reasoning

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.

p. 3
03

Whether the review application met Section 80/Order 45 grounds

Holding

No; no new matter, no error apparent on the face of the record, and the application was filed after an unexplained 8-month delay

Reasoning

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.

04

Whether submissions can substitute for evidence in a review application

Holding

No; submissions are not evidence and averments of misapprehension of law should have been in the supporting affidavit

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated November 25, 2021 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 79B
  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure ActSection 2 (definition of decree)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 2
  • Civil Procedure RulesOrder 42 Rule 3(1)
  • Civil Procedure RulesOrder 42 Rule 13
  • Civil Procedure RulesOrder 45 Rule 1(1)

Cases cited (6)

  • Mashere v Walusa
    1987 KLR 854

    Power to summarily reject appeals under Section 79B must be sparingly used and only in the clearest cases

  • Hamzaali Alibhai And 2 Others v Walusala Amirali T Sulemanji And Others
    Mombasa Civil Appeal No 2 of 1985

    High Court should be slow to reject summarily an appeal with arguable grounds drafted by counsel

  • Francis Origo & Another v Jacob Kumali Mungala
    CA Civil Appeal No 149 of 2001 [2006 2 KLR 307]

    Requirements for review including that the application be made without unreasonable delay

  • National Bank Of Kenya Ltd v Ndungu Njau
    CA Civil Appeal No 211 of 1996 [1997 eKLR]

    Error must be self-evident; misconstruing a statute or erroneous conclusion of law is not a ground for review

  • Pancras T Swai v Kenya Breweries Ltd
    2014 eKLR

    Faulting a decision on a point of law is a ground for appeal, not review

  • Absi Belinda v Fredrick Kangwamu & Another
    1963 E.A 557

    An erroneous view of evidence or law is not a ground for review though it may be a good ground for appeal

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

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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, "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.