Ethuru v Thikanyi & 3 others (Environment & Land Case 2 of 2019) [2024] KEELC 5731 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a bid to overturn a land judgment, ruling that review cannot be used to relitigate a lost case or fix unexplained delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants satisfied the four conditions for review under Order 45 Rule 1
The applicants failed to meet the threshold for review
The court set out the four hurdles for review: unreasonable delay, error apparent on the face of the record, discovery of new and essential material, or sufficient cause. The court file showed the applicants were aware of the proceedings: the 1st applicant attended the scene visit, the 2nd applicant was served with the application to cease acting, proceeded in person, testified, cross-examined witnesses, adopted witness statements and filed submissions. No error or new material was pinpointed.
Whether the 1st applicant was condemned unheard
The 1st applicant was not condemned unheard; he had authorized the 2nd applicant to prosecute the suit on his behalf
The verifying affidavit and consent dated 29.8.2011 showed the 1st applicant gave the 2nd applicant consent and authority to sign, swear and prosecute the suit. The 1st applicant's witness statement repeated this authorization, and the 2nd applicant adopted the 1st applicant's witness statement at trial. The 1st applicant did not explain his whereabouts between 2011 and 2023 nor show that his authority was withdrawn.
Whether the judgment failed to address the 1st applicant's claim in the consolidated suit
The judgment did address the consolidated suits
The court noted paragraph 44 of the judgment referred to pleadings in both files, paragraphs 53-57 and 68 addressed the 1st defendant's secondary suit on encroachment, and paragraph 65 addressed the 1st applicant's failure to prosecute his claim dated 29.8.2011. The allegation that the judgment omitted his claim was factually untrue.
Whether the delay in applying for review was explained
The delay between 7.11.2023 and 14.6.2024 was unexplained and fatal to the application
The 1st applicant learned of the judgment on 30.5.2024 and filed the application on 14.6.2024, but the delay from delivery of judgment (7.11.2023) was not explained. Having waived his rights and ceded them to the 2nd applicant as his authorized agent, he could not blame others for the suit's progress.
Legal principles established
#- A party seeking review under Order 45 must apply without unreasonable delay, demonstrate an error apparent on the face of the record, show discovery of new and essential material not available with due diligence, or establish other sufficient cause
- A losing party may not use review to obtain a second bite of the cherry or to strengthen a dismissed case with alleged new evidence
- A court exercising review powers cannot sit on appeal over its own judgment; a good ground of appeal may not be a ground for review
Court orders
#- 1.The application for review is dismissed
- 2.The applicants to pay the costs of the application
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (inherent power of the court that made the order to review it)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethuru v Thikanyi & 3 others (Environment & Land Case 2 of 2019) [2024] KEELC 5731 (KLR)", Case Analysis (2024). Case number not stated in judgment (consolidated with Tigania PMCC No. 74 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5731/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.