Bachu v Cheruiyot & 5 others; KCB Bank Limited (Defendant to the Counterclaim) (Environment & Land Case 189 of 2015) [2024] KEELC 4717 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the application is barred by res judicata
Res judicata does not arise because the application is for review, not a fresh application of a similar nature
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.
Whether the applicants demonstrated an error apparent on the face of the record
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
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.
Whether counsel's oversight in failing to produce documents constitutes sufficient ground for review
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
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.
Legal principles established
#- 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
#- 1.The Defendants/Applicants' Notice of Motion application dated 31st August, 2023 is dismissed
- 2.Costs of the application awarded to the Plaintiffs/Respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.