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ELCPartially AllowedEnvironment and Land Appeal E048 of 2023· [2023] KEELC 20550 (KLR)

Gicheru v Ngure & another

Environment and Land Court
5 October 2023
EWE. K. Wabwoto
1,398 words in judgment
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The bottom line

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A Kenyan land court changed its own earlier orders after new evidence showed who really controlled the disputed Limuru property.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (E.K. Wabwoto, J) determined two interlocutory applications in an appeal concerning LR Limuru/Rironi/57. On 15th June 2023 the Court had granted interim orders restraining the 1st Respondent from interfering with the Appellant's possession of the suit property. Dissatisfied, the 1st Respondent moved by Notice of Motion dated 16th June 2023 seeking review and/or setting aside of that ruling and a stay of execution, contending there was an error apparent on the face of the record because he, not the Appellant, was in possession and had leased the land to tenants. The Appellant opposed, arguing the interim orders had lapsed on 19th July 2023, that no error apparent on the face of the record existed, and that the Court was functus officio having granted the orders inter partes. The Court framed a single issue: whether the applications dated 17th May 2023 and 16th June 2023 were merited. Applying Section 80 of the Civil Procedure Act and Order 45 Rules 1(1) and 3(2), and a test of reasonableness, the Court relied on Michael Mungai v Ford Kenya Elections & Nominations Board and Ngororo v Ndutha on 'sufficient reason'. It held that possession extends beyond entry to control of use, and found the Assistant Chief's letter confirming the 1st Respondent's authority over 13 tenants since 2015, together with lease agreements dated 30th September 2021 renewable to 2024, constituted sufficient reason for review. The Court reviewed its 15th June 2023 orders, substituting an injunction restraining all parties from selling, charging or disposing of the suit property pending the appeal, with costs of both applications to abide the appeal.

Key legal issues

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01

Whether the 1st Respondent demonstrated sufficient reason to review the orders of 15th June 2023

Holding

Yes - new evidence (Chief's/Assistant Chief's letter and lease agreements) proved the 1st Respondent's control and possession of the suit property, justifying review

Reasoning

The Court applied a test of reasonableness, asking whether the 1st Respondent had presented sufficient reasons of possession. A letter from the Assistant Chief confirmed the 1st Respondent had authority over 13 tenants using the land since 2015, and lease agreements dated 30th September 2021 with renewal to 2024 evidenced his interest. Together these constituted sufficient reason under Order 45 Rule 1(1) to review the orders.

Legal principles established

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  • Sufficient reason for review under Order 45 Rule 1(1) is deduced from the facts and circumstances of the particular case, and the applicant must place convincing evidence before the court
  • Possession encompasses not merely entry into premises but control of the use of the premises

Court orders

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  1. 1.The Court reviewed its orders granted on 15th June 2023
  2. 2.An order of injunction issued in respect of LR Limuru/Rironi/57 restraining all parties from selling, charging and/or disposing of the suit property pending the hearing and determination of the appeal
  3. 3.Costs of both applications to abide final determination of the appeal

Authorities

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Legislation

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

Cases cited (2)

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

    Five-judge bench discussion of 'sufficient reason' grounds for review under Order 45 Rule 1(1)

  • 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
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (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, "Gicheru v Ngure & another", Case Analysis (2023). Environment and Land Appeal E048 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20550/eng@2023-10-05

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