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ELCDismissedNot stated in the judgment (Notice of Motion dated 24th June 2024, e-filed 22nd July 2024)· [2024] KEELC 6813 (KLR)

Ondiek v Nyamula (Environment and Land Appeal 54 of 2022) [2024] KEELC 6813 (KLR)

Environment and Land Court of Kenya
9 October 2024
1,421 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Homa Bay land court dismissed a landowner's bid to overturn a trespass judgment, confirming that losing parties must appeal rather than seek review without new evidence.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 24th June 2024 by Sylvance Otiende Ondiek, acting in person, seeking review, variation or setting aside of a judgment of the Environment and Land Court at Homa Bay delivered in April 2024, an order for retrial to enable implementation of a trial court order of 24th October 2019 for re-survey and re-alignment of the boundary of land parcel Kanyamwa/Kochieng/Komungu/Kakaeta/66 by the Land Registrar, leave to amend pleadings, and costs in cause. The applicant, who had sued the respondents for trespass in Ndhiwa PMC ELCC No. 116 of 2015, contended that the Land Registrar's report relied upon by both the trial and appellate courts contained scanty and false information contradicting a private surveyor's report. The 1st to 6th respondents opposed through a replying affidavit, arguing both courts had exhaustively determined the issues, that the doctrine of exhaustion applied, that the court was functus officio and the matter res judicata, and that no review grounds were established. The matter proceeded by written submissions; the applicant filed none. The court, per G. M. A Ong'ondo J, considered sections 80, 3, 3A and 100 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 2010, and authorities including Kaiza v Kaiza. It held that the applicant identified no new fact discovered with due diligence, no error apparent on the face of the record, and no sufficient reason for review. Noting no appeal had been preferred from the regular judgment of 9th April 2024, the court dismissed the application as an afterthought and devoid of merit, and ordered the applicant to bear the costs under the proviso to section 27(1) of the Civil Procedure Act.

Key legal issues

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01

Whether grounds for review under section 80 CPA and Order 45 CPR 2010 were established

Holding

The application failed; no new fact, error apparent on the face of the record, or sufficient reason was demonstrated

Reasoning

The court applied the three limbs of Order 45 Rule 1 and authorities requiring clarity and specificity. The applicant alleged the Land Registrar's report was unreliable, but did not identify a particular new fact discovered with due diligence, nor any mistake or error apparent on the record, nor sufficient reason justifying review, retrial or amendment of pleadings.

p. 3
02

Whether the judgment sought to be reviewed was regular in the absence of an appeal

Holding

The judgment of 9th April 2024 was regular and, no appeal having been preferred, the application was an afterthought

Reasoning

The court noted that no appeal was lodged against the judgment of this court delivered on 9th April 2024, rendering the application for review an afterthought. The respondents had argued the court was functus officio and the matter res judicata, and that the applicant's remedy lay in an appeal rather than review.

p. 3

Legal principles established

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  • Review entails interference with the exercise of a court's discretion only on special circumstances where apparent injustice has been occasioned, and the focus of review is the decision of the court
  • An application for review must be clear and specific; not every new fact qualifies, as due diligence must be shown

Court orders

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  1. 1.The Notice of Motion dated 24th June 2024 is dismissed
  2. 2.Costs of the application to be borne by the applicant

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 80
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 7 (res judicata)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 3, 3A and 100
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27(1) (proviso, costs)
  • Civil Procedure Rules 2010Order 45 Rule 1 (review)
  • Civil Procedure Rules 2010Order 51 Rule 16

Cases cited (5)

  • Ogada v Mollin
    [2009] eKLR
  • Bonface Kivindio v Alfred Kavila Kivindio & 2 others
    [2017] eKLR
  • The Board of Governors Moi High School Kabarak and others v Toroitich Arap Moi and others
    [2013] eKLR
  • Charles Karathe Kiarie and 2 others v Administrator of the Estate of John Wallace Mathare-Deceased and 2 others
    [2020] eKLR
  • Kaiza v Kaiza
    [2009] KLR 499
On appeal from
Ndhiwa Principal Magistrate's Court
Ndhiwa PMC Environment and Land Court Case No. 116 of 2015
Jurisdiction invoked
Sections 80, 3, 3A and 100 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules 2010 (review of judgment)

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, "Ondiek v Nyamula (Environment and Land Appeal 54 of 2022) [2024] KEELC 6813 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 24th June 2024, e-filed 22nd July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6813/eng@2024-10-09

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