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ELCDismissedNot stated in the judgment (Notice of Motion dated 13th December 2019)· [2024] KEELC 228 (KLR)

Geoffrey Kemei v Plaintiff/Respondent (Review Application)

Environment and Land Court
25 January 2024
3,430 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to review its own judgment, confirming that disagreements over law must be resolved through an appeal, not a review application.

What this practically means

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Executive summary

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The Defendant/Applicant, Geoffrey Kemei, moved the court by Notice of Motion dated 13th December 2019 under Order 45 Rules 1(1)(b) and 2(2) of the Civil Procedure Rules and Sections 1, 1A, 3 and 3A of the Civil Procedure Act, seeking review, setting aside or variation of the judgment delivered on 18th June 2019 by Lady Justice Jane Onyango, together with the decree and consequential orders. He argued that newly discovered information showed the Plaintiff/Respondent lacked locus standi to sue because full Letters of Administration had been taken out by James Kipkorir Ngeno, allegedly filed in court on 26th May 2010, three years before the suit, rendering the judgment an error of fact. The Plaintiff/Respondent opposed the application as incompetent, an afterthought and an attempt to re-litigate a matter determined on its merits, pointing out that the full grant to Joel Biegon and James Kipkorir Ngeno was issued on 15th July 2014, after she filed suit on 13th January 2013 under a Limited Grant ad Litem. Only the Applicant filed submissions, and the court treated the application as unopposed but still tested its merits. Applying Section 80 of the Civil Procedure Act and Order 45 Rule 1, and the authorities of Ajit Kumar Rath, Muyodi vs ICDC and National Bank of Kenya vs Ndungu Njau, the court found no discovery of new and important matter, no error apparent on the face of the record, and held that the Applicant was in effect inviting the court to sit on appeal on its own judgment. The proper remedy for the alleged misapprehension of law was an appeal. The application was dismissed in its entirety with no costs.

Key legal issues

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01

Whether there was discovery of new and important matter or evidence justifying review

Holding

No new and important matter or evidence was discovered; the grant to Joel Byegon and James Ngeno was issued on 15th July 2014, after the suit was filed, so it could not have existed in 2010 as the Applicant alleged

Reasoning

The Applicant's case rested on the claim that James Kipkorir Ngeno had taken out Letters of Administration filed in court on 26th May 2010, three years before the suit. The court found on the Applicant's own material that the full grant was issued on 15th July 2014, contradicting the claimed timeline, and that there was no material showing discovery of evidence not available with due diligence at the time of judgment.

p. 5
02

Whether there was a mistake or error apparent on the face of the record

Holding

There was no error apparent on the face of the record; a mere erroneous decision or a different possible view is not a ground for review, and the alleged error concerned the law, which is a matter for appeal

Reasoning

Relying on Muyodi vs ICDC and National Bank of Kenya vs Ndungu Njau, the court held that an error apparent on the face of the record must stare one in the face without elaborate argument. Where the court's view in the original record is a possible one, it is not an error. The Applicant was really asking the court to reconsider the law and reach a different conclusion, which amounts to sitting on appeal on its own judgment.

p. 6
03

Whether the court could treat the application as unopposed given the Respondent's failure to file submissions

Holding

The application would be treated as unopposed, but the court would still test its merits

Reasoning

The court noted that directions had been given for written submissions and only the Applicant complied. Failure to file submissions demonstrates inertia and lack of interest, warranting treatment of the application as unopposed, but this does not preclude testing the merits of the application against the statutory grounds for review.

Legal principles established

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  • Section 80 of the Civil Procedure Act gives the court power to review its orders, but Order 45 Rule 1 of the Civil Procedure Rules restricts the grounds: discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay
  • An error or omission on the record must be self-evident and should not require elaborate argument; a wrong appreciation of the law cannot be a ground for review
  • Where a party alleges misapprehension of procedure or substantive law or wrongful exercise of discretion, the proper remedy is an appeal, not review

Court orders

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  1. 1.The application dated 13th December 2019 is dismissed in its entirety
  2. 2.No costs of the application
Jurisdiction invoked
Order 45 Rule 1(1)(b) and 2(2) of the Civil Procedure Rules and Sections 1, 1A, 3 and 3A of the Civil Procedure Act

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, "Geoffrey Kemei v Plaintiff/Respondent (Review Application)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 13th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/228/eng@2024-01-25

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