Otieno & 2 others v Aoko (Sued on his own and as the legal administrator of the Estate of Elizafan Aoko Gumbo)

The court set out the statutory framework for review under section 80 of the Civil Procedure Act and Order 45(1), noting review requires new and important matter, mistake or error apparent on the face of the record, or other sufficient reason. It also noted the plaintiffs had lodged an appeal, and that the court has power under sections 99 and 100 to correct apparent errors. On balance it found the 1st application lacking merit.

The court applied the triple cumulative conditions in Order 42 rule 6(2): since an appeal had been preferred via notice of appeal, the plaintiffs would suffer substantial loss if stay were denied; the 30-day delay in filing the application was reasonable under Order 50 rules 2, 3 and 8; and security for due performance was required, drawing on Kenya Shell, Butt and Doshi Iron Mongers.

The court observed that the eviction order sought in the amended plaint targets section 152A of the Land Act, which prohibits unlawful occupation of private, public and community land. The plaintiffs had objected that the application offended sections 152B and 152G requiring proper notice before eviction, and that eviction could not be sought in the manner proposed. The application was ultimately dismissed for lack of merit.