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ELCDismissedNot stated in judgment· [2024] KEELC 4987 (KLR)

Nyachio v Masila (Environment & Land Case 364 of 2017) [2024] KEELC 4987 (KLR)

Environment and Land Court
2 July 2024
MCMBOGO C.G.
1,507 words in judgment
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The bottom line

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A Kenyan court threw out a request to overturn a 2017 land judgment, confirming that review applications cannot be used as disguised appeals filed years later.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (MBOGO C.G., J) determined a Notice of Motion dated 19th December, 2023 by the defendant seeking review, variation or setting aside of a judgment delivered on 31st July, 2017, together with an order allowing D. Muinde Associates Advocates to come on record and an interim order of status quo. The application was brought under Articles 40, 50 and 60 of the Constitution and Orders 9 rule 9 and 45 rule 1 of the Civil Procedure Rules. The applicant contended there were errors apparent on the face of the record, that judgment was entered against him without a hearing date and he only learnt of it when auctioneers attached his vehicle, and that he had acquired overriding interests through over twelve years of occupation. The plaintiff opposed through grounds of opposition, arguing the application was speculative, inordinately delayed, an abuse of process, and that no draft for review establishing a prima facie case was exhibited. The court framed a single issue: whether there was merit in the application. Relying on Section 80 of the Civil Procedure Act and Order 45 Rule 1, and applying Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya, the court held that review is not an appeal and must be confined to error apparent on the face of the record. The applicant's grounds were matters for appeal; no error or new matter was demonstrated; the application came seven years after judgment, after a prior stay application had been dismissed, and no appeal had been prosecuted. Only prayer 2 succeeded; the application was dismissed with costs to the plaintiff.

Key legal issues

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Whether the defendant's application met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

The application did not meet the threshold; it raised appeal-type grounds without any error apparent on the face of the record or new evidence, and was brought after an inordinate delay of seven years

Reasoning

The court set out the statutory grounds for review: discovery of new and important matter, error apparent on the face of the record, or sufficient reason, applied for without unreasonable delay. The applicant alleged denial of hearing, adverse occupation and an allegedly defective decree, but these are matters for appeal, not review. No error or new matter was deponed to. The applicant had previously sought stay of execution, dismissed on 6th May 2020, and had not prosecuted any appeal, rendering the application an abuse of process.

p. 4

Legal principles established

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  • Review is confined to error apparent on the face of the record and is not an appeal

Court orders

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  1. 1.The firm of D. Muinde Associates, Advocates allowed to come on record for the applicant (prayer 2)
  2. 2.The Notice of Motion Application dated 19th December, 2023 dismissed with costs to the plaintiff/respondent

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 50, 60
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 9 rule 9; Order 45 rule 1

Cases cited (1)

  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
Jurisdiction invoked
Articles 40, 50 & 60 of the Constitution; Order 9 rule 9 and Order 45 rule 1 of the Civil Procedure Rules; Section 80 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, "Nyachio v Masila (Environment & Land Case 364 of 2017) [2024] KEELC 4987 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4987/eng@2024-07-02

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