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ELCPartially AllowedNot stated in the judgment· [2023] KEELC 532 (KLR)

Kariithi v National Land Commission (Environment & Land Case E001 of 2021) [2023] KEELC 532 (KLR)

Environment and Land Court
7 February 2023
MGM.N. Gicheru
956 words in judgment
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The bottom line

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A Kenyan court cut a land compensation claim because accepting the payment barred the claimant from demanding more money later.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.N. Gicheru, J) determines a Notice of Motion dated 31st March, 2022 brought by the Applicant/Defendant under Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, seeking review of the judgment dated 30/11/2021 and the decree dated 2/2/2022, with costs in the cause. The Applicant, through an affidavit of Brian Ikol (director of the Applicant's legal affairs), contended that the Respondent/Plaintiff accepted an award of Kshs. 55,180,025/- on 17/12/2018, which was paid into his Equity Bank account, and that the acknowledgement gave the claimant an option to reject the award and appeal to court under Section 128 of the Land Act 2012. The Respondent opposed, arguing no new issue was raised, the Applicant failed to defend the suit, and the application was filed late, beyond six months after conclusion of the suit. Both counsel identified one issue: whether the application for review should be allowed. The court set out the prerequisites for review, holding that grounds (b), (c) and (d) need not be met cumulatively but that no appeal having been preferred and absence of unreasonable delay are mandatory. The application passed the first and fourth prerequisites, the approximately Kshs. 35,783,250/- at stake being sufficient reason, and the roughly five months' delay was not inordinate. On the merits, the court found the Respondent estopped under Section 120 of the Evidence Act from claiming a higher sum than the Kshs. 55,180,025/- he accepted, having had the option to reject and litigate. The court allowed the motion in terms of prayers 1 and 2, reviewing both the judgment and the decree, but ordered the Applicant/Defendant to pay the costs for failing to defend the suit in the first instance. Delivered virtually at Kajiado on 7th February, 2023.

Key legal issues

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01

Whether the prerequisites for review under Order 45 of the Civil Procedure Rules were met

Holding

Yes - no appeal was preferred against the judgment, the huge sum claimed (about Kshs. 35,000,000/-) constituted sufficient reason, and there was no inordinate delay

Reasoning

The court set out the prerequisites for review: no appeal preferred; discovery of new and important matter; error apparent on the face of the record; or other sufficient reason; plus absence of unreasonable delay. It held prerequisites (b), (c) and (d) need not be met cumulatively - one suffices - but the first and last are mandatory. The application passed the first prerequisite (no appeal) and the fourth (sufficient reason given the large sum at stake). The unexplained roughly five months was not inordinate delay considering the December break.

p. 2
02

Whether the Respondent was entitled to Kshs. 35,783,250/- in the decree after accepting Kshs. 55,180,025/-

Holding

No - the Respondent was estopped from claiming a higher sum after accepting the compensation

Reasoning

The Respondent had accepted an award of Kshs. 55,180,025/- which was paid into his account, and the acknowledgement gave him the option to reject the award and appeal to court under Section 128 of the Land Act 2012. Having accepted the payment and failed to litigate, he became estopped under the general estoppel in Section 120 of the Evidence Act from claiming the higher sum of Kshs. 90,963,275/-. The judgment and decree were therefore reviewed.

p. 3

Legal principles established

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  • An applicant for review need not satisfy the grounds in Order 45 Rule 1 cumulatively; satisfying any one of new matter, error apparent, or sufficient reason suffices, but no appeal having been preferred and absence of unreasonable delay are mandatory
  • A party who accepts an award of compensation is estopped under Section 120 of the Evidence Act from claiming a higher sum

Court orders

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  1. 1.The judgment dated 30/11/2021 is reviewed
  2. 2.The decree dated 2/2/2022 by the Deputy Registrar is reviewed
  3. 3.The Applicant/Defendant to pay the costs for failure to defend the suit in the first instance

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 80
  • Civil Procedure RulesOrder 45, Rules 1, 2, 5 and 51
  • Land ActSection 128
  • Evidence ActSection 120
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45, Rules 1, 2, 5 and 51 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, "Kariithi v National Land Commission (Environment & Land Case E001 of 2021) [2023] KEELC 532 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/532/eng@2023-02-07

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