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ELCDismissedNot stated in judgment (originating from an Originating Summons over Bunyala/Mudembi/1049)· [2024] KEELC 5448 (KLR)

Mukangah v Odhiambo (As Personal Rep. of the Estate of Bundenjiana Abungu Ojiambo); Esakha (Suing as the Legal Rep. of the Estate of Odhiambo Onyango) (Interested Party) (Enviromental and Land Originating Summons 88 of 2017) [2024] KEELC 5448 (KLR)

Environment and Land Court
25 July 2024
3,036 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Busia court dismissed a bid to reopen a 2020 land judgment, confirming that fraud claims and delays belong on appeal, not review.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Busia (Boaz N. Olao J) determined a Notice of Motion dated 19th January 2024 by Dennis Otieno Esakha, the legal representative of the Estate of Odhiambo Onyango, seeking review and setting aside of a judgment delivered on 15th April 2020 by Omollo J, in which William Oduory Mukangah had acquired land parcel Bunyala/Mudembi/1049 by adverse possession. The Applicant sought rehearing de novo or striking out of the Plaintiff's case, cancellation of register entries, and restoration of the land to the name of Odhiambo Onyango, arguing that the judgment rested on fraudulent succession proceedings (Busia SRM Succession Causes No 56 of 1990 and No 26 of 1996) which concerned different estates. The Plaintiff opposed, contending the application was an afterthought by a person who never sought to be enjoined, and that he had been in occupation for over 30 years. The court noted the Applicant had not sought joinder under Order 1 Rule 10 but excused the lapse. Applying Order 45 Rule 1, the court held that the alleged fraudulent succession did not constitute an error apparent on the face of the record since those succession causes never featured in the trial; with due diligence the Applicant could have raised the material at trial; alleged errors in the judgment were grounds of appeal, not review, per Pancras T. Swai v Kenya Breweries Ltd citing Belinda v Fredrick Kangwamu; and the application filed almost four years after judgment was unreasonably delayed. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether the alleged fraudulent succession proceedings amounted to an error apparent on the face of the record

Holding

They did not; the succession causes never featured in the trial proceedings, so any error could not be apparent on the face of the record before the court

Reasoning

The court held that the fact that Succession Cause No 56 of 1990 concerned a different estate could not be an error apparent on the face of the record because it never featured in the trial. Further, with due diligence the Applicant could have placed the succession material before the court during trial. Alleged fraud in the transmission chain is a matter for appeal, not review.

p. 6
02

Whether the application was brought without unreasonable delay

Holding

No; the delay of almost 4 years was unexplained and unreasonable

Reasoning

The judgment sought to be reviewed was delivered on 15th April 2020 while the application was filed on 23rd January 2024, nearly four years later. The court found no explanation proffered for the delay, and even the claim that the Applicant was searching for succession records was unsupported by evidence of when he found them.

p. 6
03

Whether the applicant's status as a non-party barred the application

Holding

No; non-parties may apply for review, and the court excused the failure to seek joinder under Order 1 Rule 10 since he may have been a necessary party

Reasoning

Although the Applicant described himself as an Interested Party without seeking joinder under Order 1 Rule 10, the court excused the lapse because his averments suggested he may have been a necessary party in the suit. The review jurisdiction under Order 45 Rule 1 is open to any person aggrieved, whether or not they were party to the earlier proceedings.

p. 5

Legal principles established

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  • A person need not have been a party to the earlier proceedings to apply for review under Order 45 Rule 1, but must show discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and must apply without unreasonable delay
  • A good ground of appeal is not necessarily a good ground for review; erroneous views of evidence or law are grounds for appeal, not review

Court orders

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  1. 1.The Notice of Motion dated 19th January 2024 and filed on 23rd January 2024 is dismissed
  2. 2.Costs of the application to the Plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3; Order 51; Order 1 Rule 10

Cases cited (2)

  • Pancras T. Swai v Kenya Breweries Ltd
    2014 eKLR
  • Belinda v Fredrick Kangwamu
    1963 E.A. 557
Jurisdiction invoked
Order 45 Rule 1 and Order 51 of the Civil Procedure Rules, Sections 1A, 1B and 3A 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, "Mukangah v Odhiambo (As Personal Rep. of the Estate of Bundenjiana Abungu Ojiambo); Esakha (Suing as the Legal Rep. of the Estate of Odhiambo Onyango) (Interested Party) (Enviromental and Land Originating Summons 88 of 2017) [2024] KEELC 5448 (KLR)", Case Analysis (2024). Not stated in judgment (originating from an Originating Summons over Bunyala/Mudembi/1049). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5448/eng@2024-07-25

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