Nthiga v Stower (Environment & Land Case 933 of 2002) [2024] KEELC 5514 (KLR)
The bottom line
#A Kenyan court confirmed it can review old land judgments but rejected this challenge because the alleged errors were not obvious enough for review.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC to review a judgment delivered by the High Court before transfer
The ELC has jurisdiction to entertain post-judgment applications in land matters transferred from the High Court
The suit concerns ownership of land, a matter reserved by Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act. Upon establishment of the ELC, the High Court ceased to have jurisdiction over land disputes. Order 45 Rule 2 permits review by another judge where the original judge is no longer attached to the court. Denying jurisdiction would leave the Defendant without any remedy, an absurd result.
Whether filing a Notice of Appeal ousts the jurisdiction to apply for review
It does not; a Notice of Appeal is not an appeal, and review remains available until a substantive appeal is lodged
The Court of Appeal authorities are conflicting (Yani Haryanto v Kisya Investments), but the predominant position, affirmed in Multichoice v Wananchi Group, is that a mere Notice of Appeal does not bar a review application. Review and appeal are mutually exclusive only once a substantive appeal is filed. The Court of Appeal Rules 2022 could not apply retrospectively to a 2013 notice.
Whether there was inordinate and inexcusable delay
No; the file was misplaced and only reconstructed in February 2023, and the four-month gap to filing was reasonable
Judgment was delivered in 2013 but the court file went missing during the transfer of matters to the ELC and was reconstructed on 28th February 2023. The application was filed on 13th June 2023, a gap of about four months. The delay was not attributable to the Defendant's negligence or laches, hence sufficient cause was established.
Whether the Defendant established an error apparent on the face of the record
No; the alleged errors require investigation into facts and law on issuance of summons and are not self-evident
The Defendant contended the suit abated and summons were invalidly served. Determining these claims would require a long-drawn process of reasoning and examination of facts, which is the province of an appeal, not review. A possible view taken by the court in the original record cannot constitute an error apparent on the face of the record.
Legal principles established
#- A Notice of Appeal is not an appeal; its filing does not bar a party from applying for review
- An error apparent on the face of the record must be self-evident and not require detailed examination or elucidation of facts or law
- Where the judge who passed the decree is no longer attached to the court, another judge attached to that court may hear the review
Court orders
#- 1.The Defendant's Notice of Motion dated 13th June 2023 seeking review is dismissed
- 2.Each party to cater for his own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nthiga v Stower (Environment & Land Case 933 of 2002) [2024] KEELC 5514 (KLR)", Case Analysis (2024). Environment & Land Case 933 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5514/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.