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ELCDismissedNot stated in judgment (Notice of Motion dated 18th December 2023)· [2024] KEELC 5894 (KLR)

Philip Juma Origi v Ann Nekesa Wabwire & Petronila Barasa Wabwire

Environment and Land Court
18 September 2024
3,953 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a man's year-late attempt to overturn a land judgment, confirming you cannot 'set aside' a final judgment—only appeal or seek review quickly.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court (Boaz N. Olao J) on the Applicant's Notice of Motion dated 18th December 2023 seeking, under Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules, to review, vary or set aside the court's judgment of 19th December 2022, in which the court found that he had trespassed on land parcel Bukhayo/Matayos/2481 belonging to the Respondents and ordered him to vacate within six months or face eviction, with a permanent injunction. The Applicant argued that new evidence - official searches showing parcels 4683 and 5813 registered in the names of third parties and himself respectively - showed the court was misled. On the first issue, the court allowed the firm of B. M. Ouma & Company Advocates to come on record despite non-compliance with Order 9 Rule 9, reasoning that the previous advocates abandoned the matter at the hearing and no party would be prejudiced. On the substance, the court held that a final judgment following a full trial cannot be set aside under the rules; review was the only available remedy. The court found the alleged 'new' evidence was within the Applicant's knowledge at trial (he held the titles himself), was irrelevant to the trespass claim over parcel 2481, and that complaints of being misled are grounds of appeal, not review. The 12-month delay in filing was also unexplained and fatal. The application was dismissed with costs to the Respondents, with leave for the incoming advocates granted.

Key legal issues

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01

Whether leave under Order 9 Rule 9 was properly sought for incoming advocates to come on record after judgment

Holding

Leave granted; although the Notice of Motion did not cite Order 9 Rule 9 nor serve the previous advocates, non-compliance was not fatal since the previous counsel absented himself at the hearing and no prejudice was shown

Reasoning

Order 9 Rule 9 protects advocates from clients who sack them after judgment to deny fees. Here the previous firm, Marisio Luchivya & Company Advocates, failed to attend the hearing and made no subsequent attempt to appear, so no fees were being mischievously denied. The Respondents' counsel raised no prejudice. Applying Tobias M. Wafubwa and the overriding objective, the firm of B. M. Ouma & Company Advocates was allowed on record.

p. 4
02

Whether the final judgment of 19th December 2022 could be set aside

Holding

No; setting aside is unavailable because the judgment was not a default judgment but a final judgment after all parties, including the Applicant, were heard

Reasoning

Relying on Kenya Power & Lighting Company Ltd v Benzene Holdings Ltd, the court held that the Civil Procedure Rules only permit setting aside of default judgments under Orders 10, 12 and 36. The judgment here followed a full trial in which the Applicant prosecuted his defence in person. The only avenues against a final judgment are review under Order 45 or appeal under Order 42; the Applicant had not appealed.

p. 4
03

Whether the discovery of alleged new evidence warranted review under Section 80 and Order 45 Rule 1(1)

Holding

No; the alleged new evidence was within the Applicant's knowledge at trial and was irrelevant to the dispute over Bukhayo/Matayos/2481

Reasoning

The Applicant himself pleaded ownership of Bukhayo/Matayos/4683 since 2016 and possessed title deeds to parcels 4683 and 5813 before he testified. Review on the ground of new evidence requires due diligence and matter not within the applicant's knowledge. Ownership of parcels 4683 and 5813 was irrelevant to the trespass claim over parcel 2481. The ground of being misled by the Respondents is a ground of appeal, not review.

p. 7
04

Whether the application was filed without unreasonable delay

Holding

No; the 12-month delay from judgment (19th December 2022) to application (18th December 2023) was unexplained and disentitled the Applicant to review

Reasoning

Order 45 Rule 1(1) requires an application for review to be made without unreasonable delay. The judgment was delivered in open court in the Applicant's presence. The gap of one year was not explained. The court treated this as an independent ground for dismissal in addition to the failure on the merits.

p. 7

Legal principles established

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  • The Civil Procedure Rules contain no provision for setting aside a final judgment; a party aggrieved by a final judgment must seek review under Order 45 or appeal under Order 42
  • To succeed on review based on discovery of new evidence, the applicant must show due diligence and that the matter was not within their knowledge when the decree was passed
  • A point which is a good ground of appeal may not be a good ground for review; an erroneous view of evidence or law is not a ground for review
  • A review application must be filed without unreasonable delay; unexplained delay disentitles a party to review
  • Non-compliance with Order 9 Rule 9 on change of advocate is not fatal where it does not undermine the court's jurisdiction, affect the core dispute or prejudice any party

Court orders

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  1. 1.The firm of B. M. Ouma & Company Advocates is allowed to come on record for the Applicant
  2. 2.The Notice of Motion dated 18th December 2023 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(1)
  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 36 Rule 10
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Tobias M. Wafubwa -v- Ben Butali
    2017 eKLR [C.A. Civil Appeal No 3 of 2016]
  • S. K. Tarwadi -v- Veronica Muehlmann
    2019 eKLR
  • Kenya Power & Lighting Company Ltd -v- Benzene Holdings Ltd T/a Wyco Paints Ltd
    C.A. Civil Appeal No 132 of 2014 [2016 eKLR]
  • Rose Kaiza -v- Angelo Mpanju Kaiza
    C.A. Civil Appeal No 225 of 2008 [2009 eKLR]
  • D. J. Lowe & Company Ltd -v- Banque Indosuez
    C.A. Civil Application No 217 of 1988
  • Pancras T. Swai -v- Kenya Breweries Ltd
    2014 eKLR
  • Belinda -v- Fredrick Kangwamu
    1963 E.A. 557
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1(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, "Philip Juma Origi v Ann Nekesa Wabwire & Petronila Barasa Wabwire", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 18th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5894/eng@2024-09-18

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