[2024] KEELC 7002 (KLR)
The court found that the applicant had established sufficient reason for review, as the error in naming the wrong parcel number in the orders of 2.2.2023 arose from unregistered mutations following subdivisions. This error prevented the implementation of the court's decree by the relevant authorities. The court held...
Source-derived case information.
- Citation
- [2024] KEELC 7002 (KLR)
- Parties
- Plaintiff: Michael K Mwangi; Plaintiff: Eliud Njuguna Mwangi; Defendant: John Kibiwot Kibowen
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 299 of 2012
- Procedural Posture
- Review Application / Ruling on Notice of Motion for Review of Court Orders
- Outcome
- application for review allowed
- Judges
- EO Obaga
- Legal Topics
- Review of Court Orders, Land Parcel Identification, Implementation of Court Decrees, Mutation Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael K Mwangi
Plaintiff
Eliud Njuguna Mwangi
Plaintiff
John Kibiwot Kibowen
Defendant
Procedural Posture
Review Application / Ruling on Notice of Motion for Review of Court Orders
Legal Issues
- 1 Whether the applicant has demonstrated sufficient reason to warrant review of the court orders issued on 2.2.2023.
- 2 Whether the naming of the wrong parcel number constitutes a valid ground for review under the law.
Ratio Decidendi
The court found that the applicant had established sufficient reason for review, as the error in naming the wrong parcel number in the orders of 2.2.2023 arose from unregistered mutations following subdivisions. This error prevented the implementation of the court's decree by the relevant authorities. The court held that review is warranted to correct such errors apparent on the face of the record, in line with the principles set out in Order 45 of the Civil Procedure Rules and the cited case law. The court concluded that the correct parcel number, being the mother title Karuna/Sosian Block 2 (Progressive)/289, must be used to enable execution of the decree, and therefore allowed the...
Court Disposition
application for review allowed
Orders
- The application for review is allowed in its entirety.
- The correct parcel number to be used for implementation of the decree is Karuna/Sosian Block 2 (Progressive)/289.
Full Case Text
Judgment text and source record
23 paragraphs
Mwangi & another v Kibowen (Environment & Land Case 299 of 2012) [2024] KEELC 7002 (KLR) (17 October 2024) (Ruling)
Neutral citation: [2024] KEELC 7002 (KLR)
Republic of Kenya
In the Environment and Land Court at Eldoret
Environment & Land Case 299 of 2012
EO Obaga, J
October 17, 2024
Between
Michael K Mwangi
1st Plaintiff
Eliud Njuguna Mwangi
2nd Plaintiff
and
John Kibiwot Kibowen
Defendant
Ruling
1. This is a ruling in respect of a Notice of motion dated 19. 6.2024 in which the Defendant/Applicant seeks review of the orders of this court given on 2. 2.2023. The Applicant contends that when he extracted the orders arising from the orders of 2. 2.2023, the same were served upon the Land Registrar and Moiben Land Control Board who could not implement the same as the mutation for parcel number which had resulted from LR. No. Karuna/Sosian Block 2 (Progressive)/289 namely LR. No. Karuna/Sosian Block 2/Progressive)/326 had not been registered.
2. The Plaintiffs/Respondent’s opposed the Applicant’s application based on a replying affidavit sworn on 19/7/2024. The Respondents did not answer to the issues raised by the Applicant’s application. They instead dwelt on how there were contradictory reports by the County Surveyor which did not tally with what was on the ground.
3. The Respondents stated that they have preferred an appeal against the ruling which was delivered on 29. 10. 2020 and that the issues being raised by the Applicant should be dealt with after the appeal is heard.
4. The parties agreed to file written submissions in respect of the application. The Applicant filed the submissions on 6. 9.2024. He submitted that the need to review the order of 2. 2.2023 is self-evident and does not require one to look at it the second time. Reliance was placed on the case of CD. Dorman Ltd –vs- Kenya Railways Corporation (2024) KEELC (KLR) (13 February, 2024) where it was held that the rectification of an order stems from the fundamental principle that justice is above all since the power to review is exercised to remove an error and not for disturbing finality. If reasoning in the decision is at variance with the clear and simple language in a statute or it suffers from manifest error of the law or if there is an error apparent on the face of the record which is liable to be rectified, the power of review can be exercised.
5. The Respondents filed submissions dated 23. 9.2024. They submitted that if the Applicant’s application is allowed, their appeal will be rendered nugatory.
6. I have considered the Applicant’s application as well as the opposition to the same by the Respondents. I have also considered the submissions by the parties. The only issue for determination is whether the Applicant has shown that there is sufficient reason to grant review. It is important to note that review is only as a result of naming the wrong parcel number. The wrong parcel number was named because there were subdivisions which had been made but the mutations had not been registered. To implement the decree of the court, there has to be the correct parcel number which is the mother title that is Karuna/Sosian Block 2 (progressive)/289. I therefore find that the application is well founded. I allow the same in its entirety.It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 17TH DAY OF OCTOBER, 2024. E. O. OBAGAJUDGEIn the virtual presence of;Mr. Omondi for Mr. Seda for Plaintiff/Respondent.Court Assistant –LabanE. O. OBAGAJUDGE17TH OCTOBER, 2024