Kipkorir v Kenya National Highway Authority; Anti-Corruption Commission (Interested Party) (Environment and Land Constitutional Petition 8 of 2021) [2023] KEELC 123 (KLR)
The bottom line
#A Nakuru court refused to reopen hearing directions but allowed a late cross-petition because the other side could simply reply — dissatisfaction with a procedure is not a ground for review.
What this practically means
#Executive summary
#Key legal issues
#Whether the court should review its directions of 12/05/2022 that the petition be heard by written submissions, substituting viva voce evidence
Review refused. The applicant's ground — that land-ownership disputes warrant cross-examination — is not a recognised ground of review; counsel was present when directions were issued and did not object, and no new evidence or apparent error was shown.
Section 80 of the Civil Procedure Act confers the power of review while Order 45 rule 1 restricts its grounds to discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, without unreasonable delay. The applicant's dissatisfaction with a procedural direction made with its participation, and its change of tack after receiving the petitioner's submissions, do not satisfy those grounds.
Whether the respondent should be granted leave to file a cross-petition seeking revocation of the petitioner's title
Leave granted. The petitioner would suffer no prejudice as he can be granted corresponding leave to file a response.
The applicant procured external counsel who determined a cross-petition was necessary to seek revocation of the petitioner's title. The petitioner argued the intended cross-petition was an afterthought and an abuse of process, but the court found no prejudice because the petitioner may respond with corresponding leave. Substantive justice favours determining all related claims over the suit property together.
Legal principles established
#- Review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules is confined to discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, and must be made without unreasonable delay.
- Leave to file a cross-petition may be granted where the other party suffers no prejudice, as corresponding leave can be given to respond.
Court orders
#- 1.Prayer 2 of the application allowed: respondent granted leave to file a cross-petition, which is deemed properly filed and served upon payment of requisite court fees
- 2.Prayer 1 (review/vary of the 12/05/2022 directions to allow viva voce evidence) refused
- 3.Costs of the application to be in the cause
- 4.Petition listed for mention for further directions on 31/1/2023 by way of Microsoft Teams
- Jurisdiction invoked
- Articles 22, 23, 47, 50(2) and 159 of the Constitution of Kenya; section 13 of the Environment and Land Court Act; Rules 19, 20(1)(c), (3) and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkorir v Kenya National Highway Authority; Anti-Corruption Commission (Interested Party) (Environment and Land Constitutional Petition 8 of 2021) [2023] KEELC 123 (KLR)", Case Analysis (2023). Not stated in the judgment (ELC petition at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/123/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.