Mangana v Gwaro & 3 others (Environment & Land Case 69 of 2015) [2024] KEELC 1330 (KLR)
The bottom line
#A Kenyan land buyer whose title was invalidated can still recover money: the court swapped ownership orders for compensation at current property value.
What this practically means
#Executive summary
#Key legal issues
#Whether the court is functus officio
The court is not functus officio; it retains jurisdiction under Section 80 CPA and Order 45 to review its own judgment.
Counsel did not pursue the functus officio argument in submissions. The court held that Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules expressly confer power on the court which passed the decree to review it, so a court faced with a review application cannot be said to be functus officio.
Whether a notice of appeal bars a review application
A notice of appeal alone, without a substantive appeal filed, does not bar review.
The court distinguished Serephen Nyasani Menge and respectfully declined to follow Moses Mwangi Karanja (Oundo J), holding it not binding. Relying on its own earlier decision in Rosemary Wanjiru Njiraini and Court of Appeal authority including Noradhco Kenya Ltd v Gloria Michele, it held that lodging a notice of appeal is not tantamount to preferring an appeal and does not deprive a party of the right to review.
Whether the judgment should be set aside in light of the succession ruling of 12 July 2023
Yes; the ruling revoking the grant and nullifying transactions is new evidence and sufficient cause for review.
The succession court (Ougo J) revoked the grant of 5 September 1995 and nullified all transactions founded on it, including the sale of the suit land, which reverted to the estate. This ruling post-dated the judgment and could not have been produced earlier, satisfying the review threshold. However, the court castigated the applicants for concealing the pending succession proceedings, which exposed two courts to conflicting decisions. The court substituted its order of registration of the plaintiff with compensation at current value.
Legal principles established
#- A court has jurisdiction to review its own judgment and is not functus officio when faced with a review application under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.
- The filing of a notice of appeal, without a substantive appeal having been filed, does not extinguish a party's right to apply for review.
- A judgment delivered after the decision under review constitutes new and important matter constituting sufficient cause for review.
Court orders
#- 1.Judgment of 29 June 2023 set aside; the order of registration of the plaintiff as proprietor substituted with an order that the plaintiff be compensated by the 1st and 2nd defendants with a sum equivalent to the current value of the suit property
- 2.Suit property to be valued by the Kisii District Government Valuer within 30 days and the valuation report filed in court
- 3.Costs of valuation to be shouldered by the applicants, recoverable from them if the plaintiff pays
- 4.Applicants and 3rd defendant to shoulder the costs of the suit as in the original judgment
- 5.No orders as to the costs of the review application
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act, Cap 21, Laws of Kenya, and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mangana v Gwaro & 3 others (Environment & Land Case 69 of 2015) [2024] KEELC 1330 (KLR)", Case Analysis (2024). Review application dated 25 July 2023 in Kisii ELC suit (parcels Nyaribari Chache/B/B/Boburia/7754). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1330/eng@2024-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.