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ELCDismissedNot stated in judgment· [2024] KEELC 5971 (KLR)

Commissioner of Lands v Heirs of the Late Wambugu Mathangani (Environment & Land Case 9 of 2009) [2024] KEELC 5971 (KLR)

Environment and Land Court
20 September 2024
JOJ. O. Olola
885 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyeri court threw out a lawyer's bid to increase a Kshs 8.5 million fee award because he never clearly showed a legal ground for review.

What this practically means

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Executive summary

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By a Notice of Motion dated 19th December 2023, the firm of Peter M. Muthoni & Company Advocates sought review of a judgment delivered by the Nyeri Environment and Land Court on 23rd September 2015, in which Kshs. 8,500,000 was set aside as counsel's fees out of land compensation of Kshs. 145,595,750. The applicant asked the court to enhance the award in light of a subsequent enhancement of compensation by Kshs. 80,000,000 in Nyeri ELCA No. 1 of 2017, taxed appeal costs of Kshs. 38,000,000, and the passage of time; alternatively to increase counsel's fees proportionately, share the taxed costs among counsel, and add accrued interest. The application, expressed to be brought under Order 45 Rules 1 and 2 of the Civil Procedure Rules and unopposed by the other parties, was considered by J. O. Olola J. The court reiterated that review lies on three grounds: discovery of new and important matter, error apparent on the face of the record, or sufficient reason, without undue delay. It found the supporting affidavit failed to identify which ground was invoked, did not state when the external decisions were made or how they related to the case, and the decisions themselves were not attached. Unable to speculate, the court found no merit in the motion, dismissed it, and made no order as to costs.

Key legal issues

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01

Whether grounds for review under Order 45 were established

Holding

The application failed as the applicant did not clearly plead any of the three review grounds or evidence the external decisions relied upon

Reasoning

The court examined the 13-paragraph supporting affidavit and found it did not clearly show which of the three review grounds was invoked. The applicant did not indicate when the decisions in Nyeri ELCA No. 1 of 2017 were made, how they related to this case, or attach the decisions, leaving the court unable to speculate on reasons to revisit the 2015 judgment.

p. 3

Legal principles established

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  • Courts may allow review on three grounds: discovery of new and important matter, error apparent on the face of the record, or sufficient reason, and the application must be made without undue delay

Court orders

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  1. 1.The Notice of Motion dated 19th December 2023 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1 and 2
Jurisdiction invoked
Order 45 Rules 1 and 2 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, "Commissioner of Lands v Heirs of the Late Wambugu Mathangani (Environment & Land Case 9 of 2009) [2024] KEELC 5971 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5971/eng@2024-09-20

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