Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case E074 of 2022· [2023] KEELC 18367 (KLR)

Esther Aita Koin v Mathenge Gitonga & Co Advocates; Co-Operative Bank of Kenya Limited & another (Interested Parties)

Environment and Land Court
22 June 2023
1,515 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Nairobi court refused to lift orders blocking a property buyer from selling or leasing the land, ruling he had already been heard and showed no valid reason for review.

What this practically means

#

Executive summary

#
The 2nd interested party, Charles Mwangi King'ori, applied by notice of motion dated March 21, 2023 for review, setting aside or amendment of orders issued on March 9, 2023 restraining him from advertising, offering for sale, leasing, renting, mortgaging, transferring or otherwise dealing with the suit property, L.R. 209/12221/57 House No. 100 Five Star Phase 1 South C, pending determination of the suit. He argued he purchased the property at a public auction conducted on behalf of Co-operative Bank on November 25, 2022, was in occupation as registered owner, was condemned unheard, and that the orders were ambiguous as to what amounts to 'dealing with' the property. The plaintiff opposed, contending the application was an abuse of process because the applicant had filed an unwithdrawn Notice of Appeal, that review of a substantial order was unavailable, and that she had been evicted despite the court's orders. The court framed two issues: whether a Notice of Appeal bars review, and whether the threshold for review was met. Relying on Multichoice v Wananchi Group, the court held that filing a Notice of Appeal per se does not bar review. On the merits, the court found from its March 9, 2023 ruling that the applicant had been served and had filed written submissions, so he was not condemned unheard. No discovery of new evidence, error or sufficient reason was established. The application was dismissed with no orders as to costs.

Key legal issues

#
01

Whether a Notice of Appeal bars an application for review

Holding

No; filing a Notice of Appeal per se does not bar a party from pursuing review, per Multichoice (Kenya) Limited v Wananchi Group (Kenya) Limited & 2 others, which binds this court

Reasoning

The plaintiff argued the application was an abuse of process because the 2nd interested party had filed a Notice of Appeal which had not been withdrawn. The court relied on the Court of Appeal's decision in Multichoice v Wananchi Group, holding itself bound by it, and rejected the plaintiff's contrary position.

02

Whether the 2nd interested party was condemned unheard

Holding

No; the ruling of March 9, 2023 confirms he was served and filed written submissions in respect of the applications that led to the orders

Reasoning

The applicant claimed he was not served with the application dated July 19, 2022 and was only joined as a party on March 9, 2023. The court found that paragraph 9 of the March 9, 2023 ruling confirmed he was served and filed submissions dated January 12, 2023, so the orders were issued after considering his responses.

p. 3
03

Whether the threshold for review under Order 45 Rule 1(1) was met

Holding

No; no discovery of new evidence, error apparent or sufficient reason was established to warrant review

Reasoning

The court applied Salama Mahmoud Saad v Kikas Investment Limited on discovery of new evidence and due diligence, and Michael Mungai v Ford Kenya on sufficient reason. The applicant's complaints of being condemned unheard and ambiguity of the orders did not establish sufficient reason for review.

p. 3

Legal principles established

#
  • Filing of a Notice of Appeal per se is not a bar to pursuing review of the same order
  • Sufficient reason for review is deduced from the facts and circumstances of the particular case, and a person whose direct interest is affected by a judgment though not a party may apply for review

Court orders

#
  1. 1.The application dated March 21, 2023 is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Civil Procedure RulesOrder 45 Rule 1(1)

Cases cited (4)

  • Multichoice (Kenya) Limited v Wananchi Group (Kenya) Limited & 2 others
    (2020) eKLR

    Filing of a Notice of Appeal per se is not a bar to pursuing review

  • Salama Mahmoud Saad v Kikas Investment Limited & anor
    [2014] eKLR

    Requirements of due diligence and knowledge for review on discovery of new evidence

  • Michael Mungai v Ford Kenya Elections & Nominations Board & others & 2 others
    [2013] eKLR

    Five-judge bench discussion of 'sufficient reason' ground for review

  • Ngororo v Ndutha & another
    [1994] KLR 402

    A non-party whose direct interest is affected by a judgment is entitled to apply for review

Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court; review under Order 45 Rule 1(1) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Esther Aita Koin v Mathenge Gitonga & Co Advocates; Co-Operative Bank of Kenya Limited & another (Interested Parties)", Case Analysis (2023). Environment & Land Case E074 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18367/eng@2023-06-22

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