Obonyo & 2 others v Lisaye (Environment and Land Appeal 18 of 2021) [2024] KEELC 532 (KLR)
The bottom line
#A Kenyan landowner who lost his case could not reopen it through review because his complaints belonged in an appeal, not a review application.
What this practically means
#Executive summary
#Key legal issues
#Whether leave was required and whether the motion was filed out of time
No leave was necessary; review applications must simply be brought without unreasonable delay, which was satisfied.
The court noted both counsel wrongly assumed the 30-day appeal timeline under Section 16A(2) of the Environment and Land Court Act and Section 79G of the Civil Procedure Act applied to reviews. Order 45 Rule 1(1) only requires the application to be made without unreasonable delay. Judgment was delivered on 21/7/2022 and the motion filed 5/09/2022, which the court held was without unreasonable delay, though it censured laxity by counsel and the registry.
Whether the threshold for review was met
Not met; the grounds raised were matters for appeal, not review.
The court adopted the principles in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya. The alleged new evidence was neither asserted nor availed; the complaint about the limitation ruling required detailed reasoning and was not an error apparent on the face of the record; and a subsequent judgment in another suit cannot found review. Non-attachment of a decree was not fatal per Peter Kirika Githaiga & another v Betty Rashid.
Whether the judgment determined the dispute with finality and restraining orders could issue
Yes; the court was functus officio and could not issue restraining orders or reopen the case.
The prior judgment had dismissed the respondent's case with costs and the parties were at the execution stage with pending taxation. The respondent's attempt to obtain restraining orders was in reality an effort to reopen his case. Relying on Shollei v Judicial Service Commission, the court held it lacked jurisdiction to further determine issues after finalizing proceedings.
Legal principles established
#- An application for review under Order 45 Rule 1(1) must be made without unreasonable delay; the 30-day timeline for appeals does not apply to reviews.
- An erroneous conclusion of law or evidence is a ground for appeal, not review.
- A court that has delivered final judgment becomes functus officio and cannot entertain further relief from the parties.
Court orders
#- 1.The notice of motion dated 5/09/2022 is dismissed with costs to the appellants.
- 2.The file be placed before the Deputy Registrar on 12/03/2024 for directions on the bill of costs dated 2/02/2023.
- Jurisdiction invoked
- Sections 63(e) and 80 of the Civil Procedure Act and Orders 45 and 50(6) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obonyo & 2 others v Lisaye (Environment and Land Appeal 18 of 2021) [2024] KEELC 532 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/532/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.