Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment (suit over Land Parcel Number Limuru/Ngecha/177)· [2024] KEELC 6148 (KLR)

Gatiba & another v Wanjiru & another (Environment & Land Case 66 of 2020) [2024] KEELC 6148 (KLR)

Environment and Land Court
24 September 2024
2,104 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court refused to review its land judgment, confirming that arguments about wrong legal conclusions belong in an appeal, not a review application.

What this practically means

#

Executive summary

#
This was a ruling on the Defendants/Applicants' Notice of Motion dated 18 October 2023, brought under Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and Article 50 of the Constitution, seeking leave for a new advocate to come on record after judgment, a stay of execution of the judgment of 25 September 2023, review of the judgment so as to declare that the 2nd Applicant holds Limuru/Ngecha/177 on behalf of his deceased brothers, and dismissal of the suit. The Applicants argued that the Plaintiffs lacked locus standi for want of letters of administration over the estates of Waitathu Kabage and Gatiba Kabage. The Respondents countered that they sued as members of the Kabage family, not as legal representatives, that this was disclosed in the plaint, and that the Court had become functus officio. Allowing the prayer for a change of advocates unopposed, the Court found no reviewable error: the Applicants participated fully in the trial, demonstrated no due diligence, and the alleged locus standi defect was moot. Applying the principle that an erroneous view of law or evidence is a ground of appeal and not of review, the Court dismissed the application with costs to the Plaintiffs.

Key legal issues

#
01

Whether the Applicants established grounds for review under Section 80 CPA and Order 45 Rule 1

Holding

No - no error apparent on the face of the record and no new evidence discovered after due diligence; the locus standi point was moot since the plaintiffs sued as family members, not legal representatives

Reasoning

Review lies on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason. The Applicants fully participated in the trial and showed no due diligence to obtain letters of administration. The plaintiffs expressly sued as members of the Kabage family, not as legal representatives of deceased estates, and the Applicants did not refute that averment. The alleged error was not self-evident.

p. 4

Legal principles established

#
  • An erroneous view of evidence or law is a ground of appeal, not a ground for review
  • An error apparent on the face of the record must be self-evident without lengthy reasoning

Court orders

#
  1. 1.The firm of Kamuiru Muibu & Co. Advocates allowed to come on record after judgment
  2. 2.Prayer for stay of execution, review/setting aside of the judgment and dismissal of the suit refused
  3. 3.The Notice of Motion dated 18/10/2023 dismissed with costs payable by the Applicants

Authorities

#

Legislation

  • Civil Procedure ActSections 80, 1A, 1B
  • Civil Procedure RulesOrder 45 Rules 1 & 2
  • Constitution of KenyaArticle 50
  • Law of Succession ActSection 45

Cases cited (5)

  • Fatuma R Sebe & Another Vs. Rashid Masaudi Nasoro & Another
    [2019] eKLR
  • Alpha Fine Foods Limited Vs. Horeca Kenya Limited & 4 Others
    [2021] eKLR
  • Ajit Kumar Rath Vs. State of Orisa & Others
    9 Supreme Court Cases 596 at Page 608
  • Republic v Medical Practitioners & Dentists Board & Another & Another; MIO1 on behalf of MIO2 (a Minor) & Another (Interested Party); Kingángá (Exparte)
    (Miscellaneous Civil Application 59 & 63 of 2019 (Consolidated)) [2021] KEHC 298
  • Abasi Belinda Vs. Frederick Kangwamu and Another
    [1963] E.A. 557
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rules 1 & 2 of the Civil Procedure Rules; Article 50 of the Constitution of Kenya

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gatiba & another v Wanjiru & another (Environment & Land Case 66 of 2020) [2024] KEELC 6148 (KLR)", Case Analysis (2024). Not stated in judgment (suit over Land Parcel Number Limuru/Ngecha/177). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6148/eng@2024-09-24

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