[2023] KEELC 21236 (KLR)
The court found that the counterclaim by the third and fourth defendants was allowed without having been proved, which constituted an error apparent on the face of the record. This procedural irregularity justified review under Order 45(1) of the Civil Procedure Rules. The court held that the plaintiffs' application...
Source-derived case information.
- Citation
- [2023] KEELC 21236 (KLR)
- Parties
- Plaintiff: Nicholas Lalta Ole Sein; Plaintiff: Robert Raposhi Ole Sein; Defendant: The Land Registrar (Kajiado County); Defendant: The District Surveyor (Kajiado County); Defendant: John Maruna Sankaire; Defendant: Leshan Sankaire
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 188 of 2018
- Procedural Posture
- Review Application / Ruling on Application for Review and Reinstatement of Suit
- Outcome
- Application allowed; judgment/decree set aside; suit reinstated for hearing on merits.
- Judges
- MN Gicheru
- Legal Topics
- Review of Judgment, Reinstatement of Suit, Burden of Proof, Errors on Face of Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Lalta Ole Sein
Plaintiff
Robert Raposhi Ole Sein
Plaintiff
The Land Registrar (Kajiado County)
Defendant
The District Surveyor (Kajiado County)
Defendant
John Maruna Sankaire
Defendant
Leshan Sankaire
Defendant
Procedural Posture
Review Application / Ruling on Application for Review and Reinstatement of Suit
Legal Issues
- 1 Whether there was an error apparent on the face of the record justifying review of the judgment.
- 2 Whether the counterclaim by the third and fourth defendants was allowed without proof.
- 3 Whether the plaintiffs' suit should be reinstated for hearing on the merits.
Ratio Decidendi
The court found that the counterclaim by the third and fourth defendants was allowed without having been proved, which constituted an error apparent on the face of the record. This procedural irregularity justified review under Order 45(1) of the Civil Procedure Rules. The court held that the plaintiffs' application had merit, as the failure to require proof of the counterclaim and the reliance on untested evidence resulted in a miscarriage of justice and infringement of due process. Consequently, the court allowed the application, set aside the judgment/decree dated 19/10/2022, and reinstated the plaintiffs' suit for hearing on the merits, where the defendants would be called upon to...
Court Disposition
Application allowed; judgment/decree set aside; suit reinstated for hearing on merits.
Orders
- The judgment/decree dated 19/10/2022 is reviewed and set aside.
- The plaintiffs' suit against the four defendants is reinstated for hearing on merit.
Full Case Text
Judgment text and source record
31 paragraphs
Sein & another v Land Registrar (Kajiado County & 3 others (Environment & Land Case 188 of 2018) [2023] KEELC 21236 (KLR) (6 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21236 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 188 of 2018
MN Gicheru, J
November 6, 2023
Between
Nicholas Lalta Ole Sein
1st Plaintiff
Robert Raposhi Ole Sein
2nd Plaintiff
and
The Land Registrar (Kajiado County
1st Defendant
The District Surveyor(Kajiado County
2nd Defendant
John Maruna Sankaire
3rd Defendant
Leshan Sankaire
4th Defendant
Ruling
1. This ruling is on the notice of motion dated 22/12/2022. The motion which is by the plaintiffs seeks the following orders.
3. Review and setting aside of the judgment/decree dated 19/10/2022.
4. Reinstatement of the Plaintiffs’ suit against the four (4) Defendants for hearing on merit where the Defendants shall be called upon to defend their statements of defence and be cross-examined on the same.
5. Any other or further order the court deems fit and just.
2. The motion which is brought under Orders 40, 45(1), 2 and 23, and 51 Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and all other enabling provisions of the law is supported by two affidavits dated 22/12/2022 and 20/4/2023 both sworn by the first Plaintiff, five grounds and nineteen (19) annexures. The gist of the entire motion is as follows.Firstly, there are clear and fundamental mistakes and errors apparent on the face of the record which include failure to allow the evidence of a surveyor, failure to call upon the Defendants to give their evidence and then relying on their unproven and untested evidence to take away a large portion of the Plaintiffs’ land thereby making a manifest or clear constitutional error which has infringed on due process of law and rights.Secondly, there was failure to observe the rules of material justice and finally, the Defendant will suffer no prejudice if the orders prayed for are granted.
3. The motion is opposed by third and fourth Defendants whose counsel has sworn a replying affidavit dated 6/4/2023. In the affidavit, counsel explains why the case proceeded the way it did on the hearing date and adds that the Plaintiffs who had the burden of proof failed to discharge that burden hence the dismissal of their case.
4. Counsel for the parties were to file written submissions by 30/9/2023. The only submissions on record and those by the plaintiffs’ counsel.
5. I have carefully considered the motion dated 22/12/2022 in its entirety including the affidavits, grounds and annexures and I find that it has merit primarily because the counterclaim by the third and fourth Defendants was allowed without having been proved. I find that this amounts to an error apparent on the face of the record and ought to be reviewed under Order 45 (1) of the Civil Procedure Rules. The motion dated 22/1/2022 is therefore allowed in terms of prayer 3, 4 and 5. It is so ordered.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 6TH DAY OF NOVEMBER, 2023. M.N. GICHERUJUDGE