Sulubu (Suing as the Legal Representative of Morris Sulubu Hare (Deceased)) v Munyaya & 3 others (Environment and Land Case 136 of 2015) [2024] KEELC 7160 (KLR)
The bottom line
#The Malindi Environment and Land Court ruled that dissatisfaction with a judgment's reasoning is grounds for appeal, not review, and dismissed the application with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 15th January 2024 contained an error apparent on the face of the record warranting review
No error apparent on the face of the record; the court properly construed the pleadings and evidence and any flaw in reasoning is a matter for appeal
The court compared the relief sought in the amended plaint with the judgment of 15th January 2024 and found it had rendered itself within the confines of the material placed before it, framed proper issues, and issued a reasoned verdict. Whether trespass on neighbouring plots was supported by the pleadings was a matter of construction open to the court; disagreement with that construction lies on appeal, not review.
Whether alleged failure to consider evidence of continued trespass warranted review
No; failure to consider or construe evidence favourably is a ground of appeal, not review
The applicant relied on uncontroverted evidence that defendants continued crossing the suit land with trucks after vacating the wells. The court held that even if such evidence existed and was not considered, or not construed to support an injunction or damages, that does not automatically entitle the applicant to review but to an appeal. This distinguishes between dissatisfaction with evidentiary findings and the narrow grounds of review under Order 45.
Legal principles established
#- A court may review its own decree or order only on discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, and the application must be made without undue delay.
- An erroneous conclusion of law or of evidence, or a flaw in reasoning, is a ground of appeal and not a ground for review.
Court orders
#- 1.The application dated 7/2/2024 is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Section 80 Civil Procedure Act and Order 45 rule 1 Civil Procedure Rules, 2010 (review by the court which passed the decree)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sulubu (Suing as the Legal Representative of Morris Sulubu Hare (Deceased)) v Munyaya & 3 others (Environment and Land Case 136 of 2015) [2024] KEELC 7160 (KLR)", Case Analysis (2024). Notice of Motion dated 7th February 2024 (suit over Ngomeni Settlement Scheme/1295). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7160/eng@2024-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.