Odunga v Kandete & 3 others (Environment & Land Case 17 of 2017) [2023] KEELC 50 (KLR)
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
#Key legal issues
#Whether discovery of the judgment in Kitale ELC No. 145 of 2015 constitutes sufficient reason for review
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.
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.
Whether the plaintiff had locus standi to institute this suit
Yes. Locus standi is assessed against this suit's claim (ownership of 2 acres and trespass), not against membership in the other suit.
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.
Whether the defective prayer (directed at a non-existent judgment of November 19, 2019) was fatal
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.
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.
Costs of the application
Costs follow the event under Section 27 of the Civil Procedure Act; only the 1st and 2nd Defendants, who brought the application, bear them.
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.
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.The application dated June 26, 2022 for review of the judgment delivered on December 10, 2021 is dismissed
- 2.The 1st and 2nd Defendants shall bear the costs of the application
- 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.