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ELCPartially AllowedNot stated in the judgment· [2023] KEELC 656 (KLR)

Darby (Suing for and on behalf of Ashbourne Properties Limited) v Thegeya & another (Environment & Land Case 365 of 2015) [2023] KEELC 656 (KLR)

Environment and Land Court
9 February 2023
1,672 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court partially reviewed its own land judgment, setting aside two orders but refusing to disturb the costs award.

What this practically means

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Executive summary

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The defendants/applicants moved the court by notice of motion dated June 28, 2022 under Order 45 rule 1(a) and Order 51 of the Civil Procedure Rules seeking review and setting aside of orders (b), (c) and (d) of the judgment delivered on May 11, 2022, which had cancelled the transfer of LR No 209/9859 at Dam Estate Langata to the 1st defendant, directed sharing of the company's assets and liabilities per shareholding as at May 15, 2012, and awarded costs to the plaintiff. The application was opposed by the plaintiff, Robert Darby. The court framed a single issue: whether the grounds and facts presented merited review. It reaffirmed that review under section 80 of the Civil Procedure Act and Order 45 rule 1 is confined to patent errors apparent on the face of the record and is not an appeal, drawing on the Supreme Court of India's decision in Ajit Kumar Rath and Ugandan authority. Finding the record showed the plaintiff had abandoned prayers 2 and 3 of his plaint and adduced no evidence on them, the court held that pronouncing orders (b) and (c) was an error apparent on the face of the record. However, the costs order rested on undisputed evidence and could not be disturbed without elaborate argument outside the scope of review. The 49-day delay was held not undue. The application succeeded in part: orders (b) and (c) of the May 11, 2022 judgment were reviewed and set aside.

Key legal issues

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Whether the grounds presented qualified for review under section 80 of the Civil Procedure Act and Order 45 rule 1

Holding

The application succeeded only in relation to prayers (b) and (c) of the judgment, which were erroneously pronounced although the plaintiff had abandoned them; the costs order was not reviewable.

Reasoning

The court applied the settled three-limb test for review: discovery of new matter, error apparent on the face of the record, or other sufficient reason, brought without undue delay. It found the plaintiff had abandoned prayers 2 and 3 of the plaint, so pronouncing orders (b) and (c) was a self-evident error. However, the order on costs rested on undisputed evidence and any challenge would require elaborate argument, exceeding the narrow scope of review. The 49-day delay was held not undue.

p. 4

Legal principles established

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  • Review is confined to correcting patent errors apparent on the face of the record; re-appraisal of evidence amounts to impermissible appellate jurisdiction.
  • An error requiring lengthy or elaborate argument to establish is not an error apparent on the face of the record.

Court orders

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  1. 1.The orders no (b) and (c) of this honorable court made on May 11, 2022 be and is hereby reviewed and set aside.

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 45 rule 1; Order 51

Cases cited (3)

  • Ajit Kumar Rath vs State of Orisa & Others
    9 Supreme Court Cases 596 at Page 608
  • Attorney General & O'rs v Boniface Byanyima
    HCMA No 1789 of 2000
  • Levi Outa v Uganda Transport Company
    [1995] HCB 340
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1 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, "Darby (Suing for and on behalf of Ashbourne Properties Limited) v Thegeya & another (Environment & Land Case 365 of 2015) [2023] KEELC 656 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/656/eng@2023-02-09

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