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ELCDismissedEnvironment and Land Case Civil Suit 55 of 2016· [2023] KEELC 21497 (KLR)

Namu & another v Njue & another

Environment and Land Court
1 November 2023
1,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Embu refused to reopen a land judgment, confirming that being unhappy with a ruling is not a reason for review.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Embu (A.K. Kaniaru, J) on a notice of motion dated October 31, 2022 by Martin Njiru Namu and David Ireri Namu, the plaintiffs in the main suit, seeking review and setting aside of the judgment delivered on October 19, 2022, together with a stay of execution pending determination of the application, and costs. The respondents, the defendants in the main suit, filed grounds of opposition contending that no grounds for setting aside the judgment had been disclosed. The application was disposed of by written submissions. The court set out the framework for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, 2010, limiting review to discovery of new and important matter or evidence, error apparent on the face of the record, or any other sufficient reason analogous to those grounds, applied without unreasonable delay. Relying on Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya (quoting Sadar Mohamed v Charan Signh), the court held that the applicants' grounds - dissatisfaction with the judgment and continued residence on the suit land - were neither analogous nor related to the permitted grounds. No new matter or error apparent on the record was demonstrated; the suit had gone through full litigation with all parties participating. The court further held that it had become functus officio upon delivering judgment and that the applicants' remedy lay in appeal, review being unavailable to a party merely dissatisfied with a judgment. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether dissatisfaction with a judgment and continued residence on the suit land constitute sufficient grounds for review

Holding

No; the grounds are neither analogous to nor within the grounds in Order 45 rule 1, and no new matter or error apparent on the record was shown

Reasoning

Section 80 of the Civil Procedure Act and Order 45 rule 1(1) confine review to discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason analogous to those grounds. The applicants' stated grounds - dissatisfaction with the judgment and residence on the land - are neither analogous nor related. The suit went through full litigation with all parties participating, so there is no justification to revisit the judgment.

p. 3
02

Whether the court, having delivered judgment, retains power to revisit the matter

Holding

No; the court becomes functus officio upon passing judgment, and the remedy for dissatisfaction is appeal

Reasoning

The court restated the general principle that after delivering judgment it cannot revisit the matter or exercise judicial power over it. A party aggrieved by the judgment should file an appeal; review is not a substitute for appeal and is unavailable to one merely dissatisfied with the outcome.

p. 3

Legal principles established

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  • 'Any other sufficient reason' for review must be analogous to the enumerated grounds of discovery of new matter or error apparent on the face of the record
  • A court becomes functus officio after passing judgment and cannot revisit the judgment; a dissatisfied party's remedy is an appeal, not review
  • Review is not available to a party merely dissatisfied with a judgment

Court orders

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  1. 1.The notice of motion application seeking review and setting aside of the judgment of October 19, 2022 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure Rules, 2010Order 45 rule 1

Cases cited (2)

  • Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya
    (2019) eKLR

    Definition of 'any other sufficient reason' for review, drawing on Sadar Mohamed v Charan Signh and Mulla's Code of Civil Procedure

  • Sadar Mohamed v Charan Signh and another
    (1963) EA 557

    'Any other sufficient reason' means grounds analogous to error on the face of the record or discovery of new matter

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction of the court which passed the decree)

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, "Namu & another v Njue & another", Case Analysis (2023). Environment and Land Case Civil Suit 55 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21497/eng@2023-11-01

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