Kemei v Keronei & 4 others (Environment & Land Case E019 of 2023) [2024] KEELC 6117 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the impugned order of 20th April, 2023 should be set aside and/or varied on review
The application was allowed as a review for 'any other sufficient reason', being the plausible non-service of the application and the order bearing the inter partes hearing date
The court applied Section 80 of the Civil Procedure Act and Order 45 Rule 1(1). Although the Defendants did not establish error on the face of the record or discovery of new matter, non-service was held to be a sufficient reason. The file showed no return of service of the ex-parte order endorsing the hearing date; the only affidavit of service on record postdated the order. Non-service was therefore plausible and constituted sufficient reason for review.
Whether an order of status quo should issue pending hearing and determination of the suit
A defined status quo order was issued under Section 63(e) of the Civil Procedure Act, preserving each party's occupation as at commencement of the suit
Relying on Section 63(e) permitting just and convenient interlocutory orders, and guided by Thugi River Estate on the need for clear description of the status quo, the court recorded the agreed position: Defendants remain on their assigned 2-Acre portions each, while the Plaintifi retains exclusive possession of the remaining 8.5 Acres, with Defendants restrained from interfering with it.
Whether the order was obtained by fraud
The allegation of fraud was not proved
The Defendants alleged in their Supporting Affidavit that the order of 20th April, 2023 was obtained fraudulently, but no evidence of fraud was presented to the court; the allegation therefore failed and the review succeeded instead on the ground of non-service as sufficient reason.
Legal principles established
#- The court has an unfettered discretion to review its own decrees or orders for any sufficient reason
- Knowledge of the existence of a suit and service of summonses does not amount to proper service of an order bearing the hearing date of an application
- Status quo orders must not be made in a vacuum; the status quo to be maintained must be clearly described
Court orders
#- 1.An order for status quo that the status quo prevailing at the commencement of the suit be maintained on the suit property pending hearing and determination of the suit
- 2.The Defendants to continue to remain on, cultivate and otherwise utilize the 2-Acre portions assigned to them by the Plaintifi prior to the institution of the suit
- 3.The Plaintifi to retain exclusive possession and use of the remaining 8.5-Acre portion which she is at liberty to cultivate
- 4.The Defendants restrained from trespassing, encroaching onto or otherwise interfering with the Plaintifi's use and enjoyment of the 8.5-Acre portion during the pendency of the suit
- 5.Costs of the application to be in the cause
- Jurisdiction invoked
- Section 63(e) and Section 80 of the Civil Procedure Act; Order 45 of the Civil Procedure Rules (review of the court's own interlocutory order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemei v Keronei & 4 others (Environment & Land Case E019 of 2023) [2024] KEELC 6117 (KLR)", Case Analysis (2024). Environment & Land Case E019 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6117/eng@2024-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.