Esther Aita Koin v Mathenge Gitonga & Co Advocates; Co-Operative Bank of Kenya Limited & another (Interested Parties)
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
#Key legal issues
#Whether a Notice of Appeal bars an application for review
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
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application was an abuse of process because the 2nd interested party had filed a Notice of Appeal which had not been withdrawn.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.
Whether the 2nd interested party was condemned unheard
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
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.
Whether the threshold for review under Order 45 Rule 1(1) was met
No; no discovery of new evidence, error apparent or sufficient reason was established to warrant review
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.
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.The application dated March 21, 2023 is dismissed
- 2.No orders as to costs
- 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.