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ELCDismissedmemorandum of appeal dated 23rd November, 2023· [2024] KEELC 89 (KLR)

Ronoh v Kiplagat (Environment and Land Appeal E010 of 2022) [2024] KEELC 89 (KLR)

Environment and Land Court
24 January 2024
2,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that wanting a different judgment outcome is grounds for appeal, not review.

What this practically means

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Executive summary

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The appellant appealed to this court against a ruling of Hon S. M. Mungai delivered on 25th October, 2022, which had dismissed his application for review of the judgment delivered on 26th October, 2021 by Hon. G. N. Wakahiu in a land dispute. The underlying suit was brought by the respondent, who sought declarations of entitlement to possession, an eviction order, a permanent injunction and damages against the appellant, who defended the suit and counterclaimed, seeking specific performance of sale agreements, alternatively a refund plus penalty, an injunction and costs. The appellant's review application sought to set aside the judgment on grounds including alleged forgery of a sale agreement dated 13th May, 1997, new evidence allegedly obtained from the DCI, Narok, and an invocation of adverse possession. The court set out the statutory framework for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, and applied the principles summarised in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya. It held that review is limited to discovery of new and important matter discovered after due diligence, error apparent on the face of the record, or other sufficient reason, and that the appellant's dissatisfaction with the judgment and allegations of error were matters fit for appeal rather than review. The court found the trial court had reached a reasonable conclusion and declined to disturb it. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the trial court erred in dismissing the appellant's application for review of the judgment of 26th October, 2021

Holding

The appeal was dismissed; the trial court had reached a reasonable conclusion based on the application and supporting documents, and the appellant failed to meet the conditions for review under Section 80 and Order 45 Rule 1

Reasoning

The court set out the statutory grounds for review and the principles from Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, including that an error apparent on the face of the record must be self-evident and that mere discovery of new evidence is insufficient without due diligence. The court found the appellant's dissatisfaction with the judgment and allegations of forgery of the sale agreement were matters for appeal, not review, and that any invitation to reverse the trial court's findings would amount to an appeal on the determination.

p. 6

Legal principles established

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  • On a first appeal the appellate court is entitled to revisit the evidence on record, evaluate it and arrive at its own conclusion, but will not interfere with findings of fact unless based on no evidence, on a misapprehension of it, or on wrong principles
  • Review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 is confined to discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and must be made without unreasonable delay
  • A party's dissatisfaction with a court's conclusion or a belief that the decision was erroneous is a ground for appeal, not review

Court orders

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  1. 1.The memorandum of appeal dated 23rd November, 2022 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (5)

  • National Bank of Kenya versus Ndungu Njau
    Civil Appeal no. 211 of 1996 [1995-98] 2 EA 249
  • Wanjiru Gikonyo & 2 Others versus National Assembly of Kenya & 4 Others
    [2016] eKLR
  • Nasibwa Wakenya Moses versus University of Nairobi & Another
    [2019] eKLR
  • Republic versus Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
  • Mwanasokoni versus Kenya Bus Service Ltd
    1982-88 1 KAR 278
On appeal from
Magistrates' Court (trial court, Hon S. M. Mungai)
not stated
Jurisdiction invoked
First appeal from the ruling of the trial magistrate on an application for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

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, "Ronoh v Kiplagat (Environment and Land Appeal E010 of 2022) [2024] KEELC 89 (KLR)", Case Analysis (2024). memorandum of appeal dated 23rd November, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/89/eng@2024-01-24

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