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ELCDismissedNot stated in the judgment (ELC Nakuru; relates to former Baringo ELC suit)· [2023] KEELC 840 (KLR)

Nyokabi v Kendagor & another (Environment & Land Case 208 of 2012) [2023] KEELC 840 (KLR)

Environment and Land Court
16 February 2023
MNMwangi Njoroge
1,558 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru land court refused to reopen a 2018 judgment because review applications need specific legal grounds, not just unhappiness with the outcome.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge J) determined the 2nd defendant's Notice of Motion dated August 2, 2022, brought under order 45 rules 1(2), 2(2) and 3(2) of the Civil Procedure Rules, seeking review of the court's judgment of October 30, 2018 and its decree, an order of eviction and demolition against the plaintiff Eunice Nyokabi from land parcel Baringo/Perkerra 101/791, and costs. The 2nd defendant, Simon Kiplagat Rotich, deponed that although the court had found no basis to interfere with his title, the plaintiff continued in occupation, that a separate eviction suit (Nakuru ELC no E16 of 2021) had been found unnecessary because a review should have been sought, and that an appeal by the plaintiff was never admitted. The plaintiff opposed, arguing the application was filed four years after judgment, that no error apparent on the face of the record existed, and that the court was functus officio because of the pending appeal. The court framed one issue: whether it should review its judgment and order eviction. Applying section 80 of the Civil Procedure Act and order 45 rule 1, and adopting the reasoning in Republic v Public Procurement Administrative Review Board, the court held that review grounds are specific and that the defendants had demonstrated neither discovery of new evidence nor any error apparent on the record, nor any other sufficient reason. The court also noted the defence never sought eviction orders. The application was dismissed with costs.

Key legal issues

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Whether the court should review its judgment of October 30, 2018 and order eviction of the plaintiff

Holding

The application for review fails; no statutory ground for review under order 45 rule 1 was demonstrated

Reasoning

Section 80 of the Civil Procedure Act confers the power of review and order 45 rule 1 restricts its grounds to discovery of new and important matter or evidence, error apparent on the face of the record, or any other sufficient reason, with the application made without unreasonable delay. The defendants' grounds - essentially dissatisfaction that the plaintiff remained on the suit land despite the judgment - did not fit any ground. The defence filed in 2009 never sought eviction orders, and the application came four years after judgment. The application was therefore dismissed with costs.

p. 4

Legal principles established

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  • Grounds for review are limited to those specified in order 45 rule 1: discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay
  • A party seeking review must demonstrate the statutory grounds; mere dissatisfaction with a judgment does not warrant review

Court orders

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  1. 1.The defendants' Notice of Motion application dated August 2, 2022 is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 rule 1(1), 1(2), 2(2), 3(2)

Cases cited (6)

  • Jersey Evening Post Limited vs Al Thani
    [2002] JLR 542
  • Raila Odinga & others vs IEBC & Others
    [2013] eKLR
  • Kenya Airports Authority vs Mitubell Welfare Society & 2 Others
    [2016] eKLR
  • Dock Workers Union & 2 Others vs Attorney General & another Kenya Ports Authority & 4 Others (Interested Party)
    [2019] eKLR
  • Tiwi Beach Hotel Ltd vs Brown
    Nairobi HCC No. 136 of 1982 [1993] KLR 595
  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
Jurisdiction invoked
Order 45 rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (review jurisdiction)

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, "Nyokabi v Kendagor & another (Environment & Land Case 208 of 2012) [2023] KEELC 840 (KLR)", Case Analysis (2023). Not stated in the judgment (ELC Nakuru; relates to former Baringo ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/840/eng@2023-02-16

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