Elias Murithi Rubucha & 2 others v Silas Micheni Murithi (appeal against ruling declining to review, vary or set aside judgment of 24.9.2013)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the alleged misstatement of acreage in the amended plaint of 14.3.2011 was an error apparent on the face of the record justifying review
No - the amended plaint was filed, verified and relied upon by the appellants' own counsel throughout the retrial; any error was a ground of appeal, not a ground for review
The same law firm initiated the amendment of 14.3.2011, pleaded 1.75 acres in paragraph 5, and the 1st appellant verified the amended plaint as true. Counsel noted the alleged error in submissions dated 8.8.2013 but waited about 7 years to seek review. The mistake was attributable to the appellants and their advocates, not the court, and inordinate unexplained delay disentitled them to review.
Whether title deeds issued pursuant to the vacated 1993 judgment constituted new and important matters for review
No - the deeds flowed from a decree set aside in 2007 and the matter proceeded de novo; they were never pleaded or disclosed to the trial court
After Ouko J set aside the original judgment on 21.9.2007 and remitted the suit for retrial, title deeds issued under the vacated decree became invalid. The appellants never pleaded the titles when the retrial commenced and only produced green cards. Such evidence was in their possession at the time of hearing and could not be new and important matter discovered after the decree.
Whether the respondent's advocates lacked capacity under Order 9 Rule 9 and whether the trial court was biased
No - any irregularity in the firm appearing did not occasion a miscarriage of justice or bias
The court found that whether or not the respondent's replying affidavit was filed by a law firm properly on record, this did not lead to miscarriage of justice, improper exercise of discretion, or bias by the trial court. The appellants' bias complaint was also rejected as the trial court had considered all evidence, submissions and the law.
Whether the trial court correctly exercised its review discretion in declining to set aside its judgment
Yes - the trial court considered all factors, evidence, submissions and the law and arrived at a correct decision
On re-appraisal, the first appellate court found the trial court properly considered the unexplained delay of over 8 years, that the correct acreage was captured in the judgment, that the acreage was not a discovery of new and important matters, and that no error apparent on the face of the record existed.
Legal principles established
#- Parties are bound by their pleadings and issues flow from pleadings
- A decision to grant or refuse review is discretionary and must be exercised judicially and on sound principles
- A party cannot benefit from an illegality or mistake of its own creation; review lies for error apparent on the face of the record, not for a wrong view which is a ground of appeal
- In a first appeal the appellate court re-appraises the entire record but is mindful the trial court saw and heard the witnesses
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- Chief Magistrate's Court (trial court)
- Meru CMCC No. 522 of 1990 (suit filed 19.1.1991; retrial after Meru HCCA No. 17 of 1994)
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's ruling on review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elias Murithi Rubucha & 2 others v Silas Micheni Murithi (appeal against ruling declining to review, vary or set aside judgment of 24.9.2013)", Case Analysis (2023). appeal dated 11.6.2021 (Meru Environment and Land Court appeal from lower court suit filed 19.1.1991). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/571/eng@2023-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.