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ELCDismissedELC Petition E001 of 2024 (Review Application dated 26/7/2024)· [2024] KEELC 7493 (KLR)

Arita & another v Bochaberi (Being sued as the representative of the Estate of the Late Hezron Ndubi Ochenge) & 8 others; Nyauma & another (Interested Parties) (Environment & Land Petition E001 of 2024) [2024] KEELC 7493 (KLR)

Environment and Land Court of Kenya
6 November 2024
MKMugo Kamau
3,789 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to reopen a land dispute, confirming that review applications must attach a formal decree and rely only on genuinely new information.

What this practically means

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Executive summary

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Alice Kemunto Arita and her husband Evans Morara Nyamongo had petitioned the Environment and Land Court at Nyamira alleging violations of their rights to privacy, property, fair administrative action and fair hearing arising from proceedings in Nyamira Chief Magistrate's Courts (CMCC No. E2 of 2020, CMCC No. 48 of 2019 and CMCC No. 38 of 2022) concerning land parcel LR No. North Mugirango/Boisanga/4600. They sought declarations that grants obtained by the Respondents were fraudulent and void, quashing of the subordinate court proceedings, ownership declarations, permanent injunction, constructive trust remedies, damages and referral of the 9th Respondent's advocate for professional misconduct. On 24/7/2024 the court upheld the 9th Respondent's preliminary objection on exhaustion of remedies and dismissed the Petition with no order as to costs. The Petitioners then applied on 26/7/2024 for review and setting aside of that judgment, and stay of execution of the subordinate court decrees, citing discovery of new matters including alleged non-service of the preliminary objection, lack of jurisdiction in the subordinate courts, fraud, and misapplication of precedents. Mugo Kamau J reviewed the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1, applying authorities including Sarder Mohamed, Ajit Kumar Rath and Ex parte Apollo Mboya. He held all grounds were matters within the Petitioners' knowledge, did not qualify as new matter, error apparent, or an analogous sufficient reason, and that allowing the application would reopen the case afresh. The application was additionally fatally defective for failing to annex a formal extracted decree or order. The application was dismissed with costs.

Key legal issues

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01

Whether the alleged grounds for review met the statutory test

Holding

The grounds alleged (deceit by the 9th Respondent, alleged defects in the preliminary objection) were known or ought to have been known to the Petitioners and did not qualify as new matter, error apparent, or an analogous sufficient reason

Reasoning

The court set out the Order 45 Rule 1 grounds and the authorities restricting 'any other sufficient reason' to reasons analogous to the specified grounds. It found all the Petitioners' grounds concerned matters within their knowledge at the time of the original judgment, and allowing the application would reopen the case afresh, contrary to the finality of litigation.

p. 8
02

Whether the application was properly constituted

Holding

The application was fatally defective because only a copy of the judgment, and not a formal extracted decree or order, was annexed

Reasoning

Following Suleiman Murunga v Nilestar Holdings Limited, the court held that an applicant for review must annex the formal extracted decree or order sought to be reviewed. Only a copy of the judgment was attached, making the application fatally defective - an independent basis for dismissal.

p. 9

Legal principles established

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  • Review is confined to the grounds in Section 80 and Order 45 Rule 1: discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason analogous to those grounds, applied for without unreasonable delay
  • An application for review must annex a formal extracted decree or order, not merely a copy of the judgment; failure renders the application fatally defective
  • Review cannot be used to reopen a case afresh; litigation must come to an end

Court orders

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  1. 1.The Petitioners'/Applicants' Application dated 26/7/2024 for review is dismissed
  2. 2.Costs of the application to the 9th Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Constitution of KenyaArticles 31, 40, 47, 50, 159(1)(e), 163(7), 165(5)(b), 165(6), 23(3), 25
  • Constitution of Kenya (Protection of Fundamental Freedoms and Rights) Practice and Procedure Rules, 2013Rule 15(2)(a)
  • Fair Administrative Actions Act, 2015Section 9(4)
  • Environment and Land Court Act, 2011Section 13(2)(d)
  • Land Registration Act, 2012Section 62
  • Limitation of Actions ActSections 4(2) and 7

Cases cited (12)

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Pancras T. Swai v Kenya Breweries Limited
    [2014] eKLR
  • Sarder Mohamed v Charan Singh Nand Sing and Another
    (1959) EA 793
  • Ajit Kumar Rath v State of Orisa & Others
    9 Supreme Court Cases 596
  • Tokesi Mambili and others v Simion Litsanga
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, Nairobi Judicial Review Division Misc. Application No. 317 of 2018
  • Evan Bwire v Andrew Aginda
    Civil Appeal No. 147 of 2006
  • Stephen Githua Kimani v Nancy Wanjira Waruingi T/A Providence Auctioneers
    (2016) eKLR
  • Suleiman Murunga v Nilestar Holdings Limited & Another
    (2015) eKLR
  • Gideon Sitelu Konchellah v Julius Lekaneny Ole Sunkuli and 2 others
    (2018)
  • JCN Holdings Ltd v Development Bank of Zambia
  • Crossland Mutinta and others v Donovan Chipanda
Jurisdiction invoked
Section 80 of the Civil Procedure Act (Cap 21) and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)

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, "Arita & another v Bochaberi (Being sued as the representative of the Estate of the Late Hezron Ndubi Ochenge) & 8 others; Nyauma & another (Interested Parties) (Environment & Land Petition E001 of 2024) [2024] KEELC 7493 (KLR)", Case Analysis (2024). ELC Petition E001 of 2024 (Review Application dated 26/7/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7493/eng@2024-11-06

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