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ELCDismissedEnvironment and Land Appeal 7 of 2021· [2023] KEELC 20615 (KLR)

Ogata v Nyandika & 4 others

Environment and Land Court
11 October 2023
2,272 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a landowner's attempt to revisit a lost appeal, confirming that review applications must strictly follow procedure and cannot reopen fully litigated cases.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyamira (JM Kamau, J) determines the Appellant's Notice of Motion dated 23/12/2022 seeking review of the court's own judgment of 28/07/2022, by which it had dismissed his appeal against the ruling of Hon. B. M. Kimtai, PM, in Keroka PM's ELC Case No. 11 of 2018. The application, premised on Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, argued that mention of Kisii High Court Civil Suit No. 95 of 1987 was not a bar to filing the Keroka suit and that no decree showed the Kisii suit was ever concluded. The Respondents opposed through grounds of opposition, contending that an appellate court cannot review its own appellate decision and that no new matter, error apparent, or sufficient reason was shown. After considering written submissions, the court reviewed the review jurisprudence, holding that 'any other sufficient reason' must be analogous to the enumerated grounds; that the application disclosed no new and important matter and amounted only to poor pleading; that allowing it would reopen the case afresh contrary to the finality of litigation; and that the application was fatally defective and irregularly before the court because no formal extracted decree or order was annexed. The application was dismissed with costs.

Key legal issues

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01

Whether the application disclosed any ground for review

Holding

The application failed all the grounds: it was not based on discovery of new and important matter, and the 'sufficient reason' ground requires reasons analogous to the specified grounds, which were absent.

Reasoning

The court applied Order 45 Rule 1 and authorities holding that 'any other sufficient reason' must be analogous to the enumerated grounds. The applicant's complaint about the earlier judgment's treatment of res judicata amounted to poor pleading, not a reviewable error, and allowing the application would reopen the case afresh contrary to the finality of litigation.

p. 5
02

Whether the application was properly instituted before the court

Holding

The application was fatally defective for failure to annex a formal extracted decree or order sought to be reviewed.

Reasoning

Relying on Suleiman Murunga v Nilestar Holdings Limited, the court held that a formal extracted decree or order is a prerequisite for a review application under Order 45. No such decree was attached to the present application, making it fatally defective and irregularly before the court.

p. 5
03

Whether a court that adjudicated a matter through full trial can review its own decision

Holding

A matter that has gone through the full motion of pleadings, interrogatories, trial conference and hearing cannot be reviewed by the same court, as that would set an unsustainable precedent.

Reasoning

The court reasoned that allowing review of a matter fully litigated would set an unsustainable precedent and offend the principle that litigation must come to an end. Parties must present all facts, documents and evidence at the appropriate time before the court retires to write its judgment.

p. 5

Legal principles established

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  • Review under Section 80 and Order 45 Rule 1 is confined to discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason analogous to the specified grounds
  • A formal extracted decree or order is a prerequisite to an application for review; failure to annex it renders the application fatally defective
  • Review cannot be used to reopen a case afresh; litigation must come to an end

Court orders

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  1. 1.The Appellant's/Applicants' Application dated 23/12/2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 80
  • Civil Procedure Act (Cap 21)Section 7
  • Civil Procedure Rules, 2010Order 45 Rule 1

Cases cited (9)

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR

    Section 80 gives the power of review and Order 45 restricts the grounds and scope of review

  • Pancras T. Swai v Kenya Breweries Limited
    [2014] eKLR

    Order 45 rule 1 gives trial court discretionary power to allow review on the three limbs stated or for any sufficient reason

  • Sarder Mohamed v. Charan Singh Nand Sing and Another
    (1959) EA 793

    Section 80 confers an unfettered discretion on the court to make such order as it thinks fit on review

  • Ajit Kumar Rath vs State of Orisa & Others
    9 Supreme Court Cases 596 at Page 608

    Scope of review: only for correction of patent error; 'any other sufficient reason' must be analogous to the specified grounds

  • Tokesi Mambili and others vs Simion Litsanga

    Applicant must show discovery of new matter, error apparent, or sufficient reason; sufficient reason is for the court's discretion

  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, Nairobi Judicial Review Division Misc. Application No. 317 of 2018

    Principles on the scope of review under Section 80 and Order 45 Rule 1

  • Evan Bwire v Andrew Aginda
    Civil Appeal No. 147 of 2006

    Review allowed only on strong grounds, particularly where its effect would reopen the case afresh

  • Stephen Githua Kimani v Nancy Wanjira Waruingi T/A Providence Auctioneers
    (2016) eKLR

    Cited as the case in which Evan Bwire v Andrew Aginda was set out

  • Suleiman Murunga v Nilestar Holdings Limited & Another
    (2015) eKLR

    A formal extracted decree or order is a prerequisite for a review application; failure to annex it is fatally defective

On appeal from
Keroka Principal Magistrate's Court
ELC Case No. 11 of 2018
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review of the court's own appellate judgment)

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, "Ogata v Nyandika & 4 others", Case Analysis (2023). Environment and Land Appeal 7 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20615/eng@2023-10-11

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