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ELCDismissedMotion dated 1/11/2023 (judgment number not stated)· [2024] KEELC 7189 (KLR)

Parashuru v Maseine & 9 others (Environment & Land Case 750 of 2017) [2024] KEELC 7189 (KLR)

Environment and Land Court
29 October 2024
679 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court refused to expand a lost land case through review, confirming review cannot add new land or claims that were never originally pleaded.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (M.N. Gicheru, J) determines a notice of motion dated 1/11/2023 in which the plaintiff sought review of the judgment dated 31/1/2023 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The applicant asked the court to review the judgment on the ground of mistake or error on the face of the record and to declare that his ownership of L.R. No. 1173 extends to its subdivisions, L.R. Kajiado/Lorngusua 2119 and 2118, and further to order removal of a caution registered on L.R. No. 2119, with costs. The court determined the motion despite the absence of the respondents' replying affidavit and submissions on record. It held, first, that the plaint of 8/2/2016 related only to L.R. No. 2119 and never mentioned L.R. No. 1173, so review could not extend to a new parcel of land requiring a separate suit. Secondly, no caution was pleaded in the plaint, so its removal could not be sought through review, as that would introduce a new cause of action unfairly to the defendants. Thirdly, the plaintiff, having lost the main suit, could not be awarded costs, since costs follow the event under the proviso to Section 27 of the Civil Procedure Act. The court reaffirmed that the underlying dispute was a boundary matter to be resolved by the Land Registrar before filing in court. The motion was dismissed with costs.

Key legal issues

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01

Scope of review for mistake or error on the face of the record

Holding

Review cannot be used to expand the suit's subject matter or introduce new parcels or causes of action not pleaded

Reasoning

The plaint dated 8/2/2016 related solely to L.R. No. 2119 and never mentioned L.R. No. 1173 or any caution. The applicant sought through review to extend ownership to subdivisions 2118 and 2119 and to remove a caution, both of which were new matters. The court held review must relate to the pleaded subject matter, and unpleaded issues must be pursued in a separate suit; it would be unfair to the defendants to determine matters outside the suit.

p. 2
02

Costs on a review application by an unsuccessful litigant

Holding

The unsuccessful plaintiff in the main suit cannot be awarded costs of the application

Reasoning

Under the proviso to Section 27 of the Civil Procedure Act, costs follow the event and depart from that rule requires good reason. The applicant was not the successful party in the judgment of 31/1/2023 and gave no persuasive reason why costs should nonetheless be awarded to him.

p. 2
03

Underlying merits of the original judgment

Holding

The original judgment was clear: the dispute was a boundary dispute to be resolved by the Land Registrar before filing in court

Reasoning

The court reaffirmed that the plaintiff lost the main suit because the dispute was essentially a boundary dispute within the mandate of the Land Registrar and had to be resolved by that office before being brought to court. No error on the face of the record was demonstrated to justify review of that finding.

p. 2

Legal principles established

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  • Review jurisdiction is confined to the subject matter of the original suit and cannot be used to introduce a new parcel of land or a new cause of action
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, and an unsuccessful party cannot ordinarily be awarded costs

Court orders

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  1. 1.Dismissal of the notice of motion dated 1/11/2023
  2. 2.Costs of the motion awarded to the defendants
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 45 rules 1(a), 3(2) and 5 and Order 51 rule 1 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, "Parashuru v Maseine & 9 others (Environment & Land Case 750 of 2017) [2024] KEELC 7189 (KLR)", Case Analysis (2024). Motion dated 1/11/2023 (judgment number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7189/eng@2024-10-29

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