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ELCStruck OutEnvironment and Land Miscellaneous Application 53 of 2022· [2023] KEELC 21578 (KLR)

Safe Haven Limited v Omar & 4 others

Environment and Land Court
17 November 2023
MOM.A. Odeny
2,614 words in judgment
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The bottom line

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The Environment and Land Court in Malindi struck out Safe Haven's review application because it was filed in the wrong case file, awarding costs to the respondents.

What this practically means

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Executive summary

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Safe Haven Limited, which had obtained judgment in ELC Case No. 79 of 2017 declaring it a bona fide purchaser of the suit property and ordering specific performance, brought a notice of motion dated November 24, 2022 seeking enlargement of time, leave to review, and review/setting aside of an earlier judgment delivered by Olola J on August 31, 2021 in ELC Case No. 82 of 2014, plus orders cancelling an indenture of July 5, 2022 registered in favour of the 4th Respondent and restoring the title to the 3rd Respondent. The applicant, a non-party to ELC 82 of 2014, advanced seven grounds including limitation, absence of a valid written sale agreement for the 2nd Respondent, inadmissible and unstamped documents, failure to consolidate the two suits, non-compliance with Order 21 rule 6, and adverse possession. The 1st, 2nd, 4th and 5th Respondents opposed, arguing lack of locus standi, inordinate delay of some 15 months, failure to meet the Order 45 threshold, and abuse of process. Odeny J held that although an aggrieved non-party has locus standi to seek review under Order 45 rule 1 and section 80 of the Civil Procedure Act, the application was procedurally improper because it should have been filed in ELC Case No. 82 of 2014, the case whose judgment was sought to be reviewed. Noting the applicant had withdrawn from that suit and filed ELC 79 of 2017, and that courts do not give orders in vain, the court declined to consider the merits and struck out the application with costs to the Respondents.

Key legal issues

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01

Whether the applicant, a non-party to ELC Case No. 82 of 2014, could bring a review application by way of miscellaneous application

Holding

The applicant had locus standi as an aggrieved non-party, but the application was procedurally improper because it was not filed in the case sought to be reviewed; it was struck out.

Reasoning

Order 45 rule 1 permits any party or non-party aggrieved by a judgment to seek review. However, the proper forum is the suit in which the judgment was delivered. Filing by miscellaneous application was the wrong procedure. The court also noted the applicant had earlier been a party in ELC 82 of 2014, withdrew, and filed ELC 79 of 2017, and courts do not issue orders in vain.

p. 5

Legal principles established

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  • A non-party aggrieved by a judgment has locus standi to apply for review, but the review application must be filed in the suit in which the judgment sought to be reviewed was delivered.

Court orders

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  1. 1.The notice of motion dated November 24, 2022 is struck out
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 45 rule 1
  • Civil Procedure RulesOrder 21 rule 6
  • Civil Procedure RulesOrder 21 [1]
  • Limitation of Actions Actsection 7
  • Law of Contract Actsection 3(3)
  • Land Act, 2012section 38
  • Stamp Duty Actsection 19(1)

Cases cited (12)

  • Accredo Ag and 3 others v Steffano Uccelli and another
    [2017] eKLR

    A third party who considers himself aggrieved may take recourse to review

  • Union of India v Nareshkumar Jagad
    Review Petition C D. No. 40966 of 2013 cited in Civil Appeal No. 7448 of 2011

    Third party aggrieved person may seek review

  • Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited
    [2014] eKLR
  • Makula International Ltd v His Eminence Cardinal Nsubuga & another
    [1982] HCB 11
  • Fredrick Otieno Outa v Jared Odoyo Okello and 3 others
    [2017] eKLR

    Inherent jurisdiction to ensure ends of justice

  • Civicon Limited v Kivuwatt Limited and 2 others
    [2015] eKLR

    Functus officio; joinder applications must be made in pending cases

  • Govinda Naik v West Patent Press Co. Ltd
    AIR 1890 Kant 92

    Later judgment ought to be followed where two judgments conflict

  • Isaac Indah Muchesi v Lawrence Gichuru Njenga and 3 others
    [2018] eKLR

    Inordinate delay; equity aids the vigilant

  • Republic v Advocates Disciplinary Tribunal Ex-parte Apollo Mboya
    [2019] eKLR

    Definition of error apparent on the face of the record; review threshold

  • Nguruman Limited v Jan Bonde Nielsen and 2 others
    [2014] eKLR

    Conditions for temporary injunction

  • Alpha Fine Foods Limited v Horeca Kenya Limited and 4 others
    [2021] eKLR

    Awareness of suit does not amount to new evidence for review

  • Afapack Entrprises Limited v Punita Jayant Acharya
    [2018] eKLR

    Delay of 9 months held inordinate

Jurisdiction invoked
Sections 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules (review jurisdiction); section 3A Civil Procedure Act (inherent jurisdiction) invoked by applicant

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, "Safe Haven Limited v Omar & 4 others", Case Analysis (2023). Environment and Land Miscellaneous Application 53 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21578/eng@2023-11-17

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