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ELCDismissedKericho ELC Suit (Further Amended Plaint dated 7th December 2021); Notice of Motion dated 31st August 2023· [2024] KEELC 4717 (KLR)

Bachu v Cheruiyot & 5 others; KCB Bank Limited (Defendant to the Counterclaim) (Environment & Land Case 189 of 2015) [2024] KEELC 4717 (KLR)

Environment and Land Court
13 June 2024
3,970 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determines a Notice of Motion dated 31st August 2023 by the Defendants/Applicants seeking review of the court's orders of 30th January 2023 and recall of the 1st Defendant to produce a list of exhibits filed on 26th June 2018 but not produced when he testified. The applicants argued the failure was an excusable oversight by counsel, that the documents had been served on all parties, and that the court's contrary finding was an error apparent on the face of the record. The Plaintiffs/Respondent opposed via grounds of opposition, arguing res judicata, laches, ambush and prejudice, since the request had already been rejected during re-examination on 30th January 2023 and the plaintiffs had closed their case. The court framed a single issue: whether the orders of 30th January 2023 should be reviewed. It applied Section 80 of the Civil Procedure Act and Order 45 Rule 1, holding that res judicata did not arise because the application is one for review, but that no error apparent on the face of the record was demonstrated. Relying on Muyodi v ICDC, Saham Assurance v Shimoli and Otieno, Ragot & Co Advocates, the court distinguished a self-evident error from a mere erroneous decision, holding that the applicants' complaint about the court's finding on service was a ground of appeal, not review, and counsel's oversight could not reopen the case. The application was dismissed with costs to the Plaintiffs/Respondent.

Key legal issues

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01

Whether the application is barred by res judicata

Holding

Res judicata does not arise because the application is for review, not a fresh application of a similar nature

Reasoning

The Plaintiffs relied on Section 7 of the Civil Procedure Act and Uhuru Highway Development Ltd to argue that the 30th January 2023 ruling had already determined the issue. The court held the doctrine inapplicable because the present application is framed as a review under Section 80 and Order 45, and proceeded to determine it on the review grounds.

p. 7
02

Whether the applicants demonstrated an error apparent on the face of the record

Holding

They did not; their complaint is that the court wrongly found the documents unserved, which is at most an erroneous decision appealable, not a self-evident error on the record

Reasoning

Relying on Muyodi v ICDC, the court distinguished an error apparent on the face of the record from a mere erroneous decision. The applicants asserted that service had been effected and that the court's contrary finding was wrong. That is an attack on the correctness of the ruling, cured only by appeal, and counsel's oversight in failing to produce documents is not a reviewable error.

p. 9
03

Whether counsel's oversight in failing to produce documents constitutes sufficient ground for review

Holding

No; inadvertent mistakes of counsel in failing to produce exhibits do not warrant review and cannot be used to reopen a case to the prejudice of the opposing party

Reasoning

The court adopted Saham Assurance Co. Ltd v Shimoli and Otieno, Ragot & Company Advocates, holding that Order 45 rule 1 does not excuse every inadvertent error. Mistakes by counsel in filing or producing evidence are errors of the party, not of the court, and review discretion cannot assist a party lacking diligence.

p. 8

Legal principles established

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  • Review on the ground of error apparent on the face of the record requires a self-evident error; a complaint that the court reached a wrong decision is a ground of appeal, not review.

Court orders

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  1. 1.The Defendants/Applicants' Notice of Motion application dated 31st August, 2023 is dismissed
  2. 2.Costs of the application awarded to the Plaintiffs/Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 7, 80
  • Civil Procedure RulesOrder 45 Rule 1, Order 18 Rule 10, Order 3 Rule 2, Order 7 Rule 5, Order 11 Rule 7
  • Evidence ActSection 146
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (11)

  • Coftea Machinery Services Ltd v Akiba Bank Ltd & 2 Others
    [2004] eKLR
  • Joseph Kipkreli Lotukei v Stephen Toroitich Korkou
    [2021] eKLR
  • Kenya Commercial Bank Limited v Muiri Coffee Estate Ltd & another
    [2016] eKLR
  • Johana Kipkemei Too vs Hellen Tum
    [2014] eKLR
  • Raila Odinga & 5 Others vs IEBC & 3 Others
    [2013] eKLR
  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 others
    [1996] eKLR
  • Muyodi v Industrial and Commercial Development Corporation & Anor
    [2006] 1 EA 243
  • Nyamogo and Nyamogo v Kogo
    [2001] EA 174
  • Saham Assurance Co. Ltd v Shimoli
    (Civil Suit 2 of 2018) [2022] KEHC 14372 (KLR) (27 October 2022)
  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A of the Civil Procedure Act, Order 45 Rule 1 and Order 18 Rule 10 of the Civil Procedure Rules, Section 146 of the Evidence Act and Article 159(2)(d) of the Constitution of Kenya

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, "Bachu v Cheruiyot & 5 others; KCB Bank Limited (Defendant to the Counterclaim) (Environment & Land Case 189 of 2015) [2024] KEELC 4717 (KLR)", Case Analysis (2024). Kericho ELC Suit (Further Amended Plaint dated 7th December 2021); Notice of Motion dated 31st August 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4717/eng@2024-06-13

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