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ELCDismissedNot stated in the judgment· [2024] KEELC 5206 (KLR)

Cherret v Lapendo (Environment & Land Case 258 of 2017) [2024] KEELC 5206 (KLR)

Environment and Land Court
15 July 2024
2,316 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court dismissed a bid to revive a judgment, confirming that review applications must attach the order being reviewed or they will fail.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determined a Notice of Motion dated 10th August 2023 by the Plaintiff, Michaelia Cherret, seeking review and setting aside of the court's order of 14th June 2023 which had set aside an earlier judgment of 18th May 2021 and deemed the Defendant's Defence and Counterclaim filed on 26th November 2021 as properly filed. The Plaintiff also sought striking out of the Defence and Counterclaim filed on behalf of the estate of the late Harold William Blunt, whom she described as a stranger to the suit, and entry of judgment against the Defendant, Christine Narumu Lapendo, in terms of prayer (iv) of the Plaint, or alternatively reinstatement of the judgment and decree of 18th May 2021. The Defendant opposed the application, asserting she was the widow and legal representative of the deceased and that the suit property was matrimonial property, and that her defence and counterclaim raised triable issues. Framing the sole issue as whether the application met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, the court held that the alleged irregular joinder or substitution of the estate was not an error apparent on the face of the record and that the Plaintiff's remedy was an appeal. Relying on Suleiman Murunga v Nilestar Holdings Limited, the court further found the application fatally defective for failure to annex the impugned order. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicant met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1

Holding

The applicant failed to demonstrate an error apparent on the face of the record; the complaint about the joinder of the estate was a matter for appeal, not review

Reasoning

The court noted there was a valid existing order of 14th June 2023 setting aside the ex-parte judgment and deeming the defence properly filed after finding triable issues. The argument that the estate was irregularly joined without a joinder order did not constitute a mistake or error apparent on the face of the record, as the order was made after considering an application. The proper remedy for an aggrieved party is an appeal, not review.

p. 4
02

Whether the application was competent absent annexure of the impugned order

Holding

The application was defective and fatally so for failure to annex the formal order sought to be reviewed

Reasoning

Relying on Suleiman Murunga v Nilestar Holdings Limited, the court held that an applicant for review ought to annex a formal extracted decree or order in respect of which review is sought. The applicant did not annex the impugned order of 14th June 2023, so the application could not bring itself within the ambit of Order 45 of the Civil Procedure Rules and was incurably defective.

p. 5

Legal principles established

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  • A party aggrieved by an order of the court should challenge it on appeal rather than through review disguised as correction of an error apparent on the face of the record
  • An application for review must be accompanied by the formal decree or order sought to be reviewed; failure to annex it renders the application fatally defective

Court orders

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  1. 1.The application dated 10th August, 2023 is dismissed
  2. 2.Costs of the application are awarded to the respondent
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63 and 80 of the Civil Procedure Act and Sections 3 and 13(7) of the Environment and Land Court Act; Order 45 Rule 1 of the Civil Procedure Rules

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, "Cherret v Lapendo (Environment & Land Case 258 of 2017) [2024] KEELC 5206 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5206/eng@2024-07-15

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