Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedApplication dated June 26, 2022 in Kitale ELC (suit number not stated in judgment)· [2023] KEELC 50 (KLR)

Odunga v Kandete & 3 others (Environment & Land Case 17 of 2017) [2023] KEELC 50 (KLR)

Environment and Land Court
18 January 2023
5,286 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kitale dismissed defendants' bid to review a land judgment, confirming that review cannot replace an appeal in Kenya.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Kitale (Nyagaka J, delivered January 18, 2023) determines the 1st and 2nd Defendants' application dated June 26, 2022, brought under Order 22 Rule 22 and Order 45 Rule 1 of the Civil Procedure Rules, 2010 and Section 63(e) of the Civil Procedure Act, seeking review of the judgment in this suit, which had decreed that they were not among the 126 persons to whom land parcel LR No. 5777/3 (now Saboti/Sikhendu Block 5/Chepkorok) should be transferred, and had vindicated the Plaintiff's ownership of 2 acres purchased from an original member of Chepkorok Farm Limited. The Applicants grounded review on discovery of the judgment in Kitale ELC No. 145 of 2015, contending that the Plaintiff, not being among the 126 original members identified in that suit, lacked locus standi. The Plaintiff opposed, arguing the two suits differed in parties and cause of action, that review was an attempt to appeal by the backdoor, and that the application was aimed at forestalling execution and eviction. The court framed two issues: whether review was merited and who should bear costs. It noted the application's substantive prayer was fatally misdirected, citing a non-existent judgment of November 19, 2019 in this file, but overlooked the defect under Article 159(2)(d) and determined it against the judgment of December 10, 2021. Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, the court held the conditions for review were unmet: the parties, subject matter (1351 acres versus 2 acres), causes of action and reliefs in the two suits were wholly different, and no reason analogous to the statutory grounds existed. The plaintiff had locus standi. The application was dismissed as an abuse of process, with costs to the Plaintiff payable by the 1st and 2nd Defendants only. Issues of representation under Order 9 Rule 9 were noted as defective but not acted upon.

Key legal issues

#
01

Whether discovery of the judgment in Kitale ELC No. 145 of 2015 constitutes sufficient reason for review

Holding

No. The two suits differ in parties, subject matter (1351 acres vs 2 acres), causes of action and reliefs; the judgment in the other suit has no impact on this one, so no analogous sufficient reason exists.

Reasoning

The court compared the parties, causes of action, reliefs and findings in both suits. Kitale ELC No. 145 of 2015 concerned membership of Chepkorok Farm Limited and transfer of the entire 1351-acre parcel to 126 original members, whereas this suit concerned ownership of 2 acres purchased by the plaintiff, trespass and injunction. The plaintiff was not a party to the other suit and the issues here were not adjudged there, so the later judgment cannot ground review.

p. 7
02

Whether the plaintiff had locus standi to institute this suit

Holding

Yes. Locus standi is assessed against this suit's claim (ownership of 2 acres and trespass), not against membership in the other suit.

Reasoning

The applicants argued that because the plaintiff was not among the 126 members identified in Kitale ELC No. 145 of 2015, he lacked capacity to sue. The court held that membership in that suit is unrelated to the claim of ownership and trespass over 2 acres in this case; the plaintiff therefore had all it takes, that is the locus standi, to institute this suit.

p. 8
03

Whether the defective prayer (directed at a non-existent judgment of November 19, 2019) was fatal

Holding

The court overlooked the defect under Article 159(2)(d) and determined the application on the basis that it targeted the judgment of December 10, 2021 in this file.

Reasoning

The substantive prayer sought review of a judgment 'delivered on November 19, 2019', but no such judgment exists in this file; that date belongs to Kitale ELC No. 145 of 2015. Strictly the application would fail on that account alone, but invoking Article 159(2)(d) the court construed it as directed at the December 10, 2021 judgment and dealt with it on the merits.

p. 4
04

Costs of the application

Holding

Costs follow the event under Section 27 of the Civil Procedure Act; only the 1st and 2nd Defendants, who brought the application, bear them.

Reasoning

The 3rd and 4th Defendants did not challenge the judgment and cannot be condemned to bear costs they did not occasion. The 1st and 2nd Defendants moved the Court in an application that ought not to have been urged and so bear the costs.

p. 9

Legal principles established

#
  • An application for review must be made in the same file where the judgment or order was delivered
  • The conditions for review under Section 80 CPA and Order 45 Rule 1 are discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason analogous thereto, and the application must be made without unreasonable delay
  • Review cannot substitute the remedy of appeal

Court orders

#
  1. 1.The application dated June 26, 2022 for review of the judgment delivered on December 10, 2021 is dismissed
  2. 2.The 1st and 2nd Defendants shall bear the costs of the application

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Civil Procedure Rules, 2010Order 45 Rule 1(a) and 1(1)
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure ActSection 63(e)
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (11)

  • Watulatsu Samuel & 2 Others vs. Zirimu Haruna
    2010 UGHC 186
  • Vivien Wendy Oyier v Juma Mohamed & 3 others
  • Wachira Karani v Bildad Wachira
    (2016) eKLR
  • Muyodi -v- Industrial and Commercial Development Corporation & Another
    (2006) 1 EA 243
  • re Estate of Japhet Avugwi Luseno (Deceased)
    [2020] eKLR
  • Francis Njoroge Vs Stephen Maina Kamore
    [2018] eKLR
  • Ajit Kumar Rath vs State of Orisa & Others
    9 Supreme Court Cases 596
  • Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya
    [2019] eKLR
  • Stephen Gathua Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2016] eKLR
  • Nasibwa Wakenya Moses v University of Nairobi & Another
    [2019] eKLR
  • Sadar Mohamed vs Charan Singh and Another
Jurisdiction invoked
Order 22 Rule 22 and Order 45 Rule 1(a) of the Civil Procedure Rules, 2010 and Section 63(e) of the Civil Procedure Act (review jurisdiction; Section 80 Civil Procedure Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Odunga v Kandete & 3 others (Environment & Land Case 17 of 2017) [2023] KEELC 50 (KLR)", Case Analysis (2023). Application dated June 26, 2022 in Kitale ELC (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/50/eng@2023-01-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.