[2018] KEELC 2951 (KLR)
The court found that the applicant failed to demonstrate the existence of any new and important matter or evidence, or any mistake or error apparent on the face of the record, as required under Order 45 Rule 1 of the Civil Procedure Rules, 2010 and Section 80 of the Civil Procedure Act. The application was deemed an...
Source-derived case information.
- Citation
- [2018] KEELC 2951 (KLR)
- Parties
- Plaintiff: Zablon Adalo Ogango; Defendant: Alice Musimbi Chiveli; Defendant: The Chairman, Land Disputes Tribunal, Kapsabet; Defendant: The Lands Registrar, Nandi County; Defendant: The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 387 of 2013
- Procedural Posture
- Review Application / Ruling on Application for Review of Judgment
- Outcome
- application dismissed with costs
- Judges
- A Ombwayo
- Legal Topics
- Review of Judgment, Sufficient Cause, Error on Face of Record, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zablon Adalo Ogango
Plaintiff
Alice Musimbi Chiveli
Defendant
The Chairman, Land Disputes Tribunal, Kapsabet
Defendant
The Lands Registrar, Nandi County
Defendant
The Attorney General
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the applicant has demonstrated new and important matter or evidence to warrant review of the judgment.
- 2 Whether there is a mistake or error apparent on the face of the record justifying review.
- 3 Whether the court has jurisdiction to review its own decision in the circumstances.
Ratio Decidendi
The court found that the applicant failed to demonstrate the existence of any new and important matter or evidence, or any mistake or error apparent on the face of the record, as required under Order 45 Rule 1 of the Civil Procedure Rules, 2010 and Section 80 of the Civil Procedure Act. The application was deemed an attempt to re-agitate issues already determined by the court, which is not permissible under the law. The court emphasized that it does not have jurisdiction to sit on appeal over its own decisions. Consequently, the application for review was dismissed for lack of merit.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondent.
- The name of Samson Kipkosgei Murei is struck out from the proceedings.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 387 OF 2013
ZABLON ADALO OGANGO...............................................................................PLAINTIFF
VERSUS
ALICE MUSIMBI........................................................................................1ST DEFENDANT
THE CHAIRMAN, LAND DISPUTES TRIUBUNAL, KAPSABET.....2ND DEFENDANT
THE LANDS REGISTRAR, NANDI COUNTY.......................................3RD DEFENDANT
THE ATTORNEY GENERAL...................................................................4TH DEFENDANT
RULING
The applicant, Judgment debtor Alice Musimbi Chiveli has come to court vide application dated 14. 2.2018 praying for orders that the honourable court does order for review of its order pursuant to the judgment dated 25. 1.2018 and substitute it with an order allowing the 1st defendant’s claim. The reasons for the application are given thus, that the applicant is the registered owner of the whole of the suit land and that she is aggrieved by the decision made by the court. The plaintiff filed grounds of opposition stating that the applicant has raised no new issues or material facts to enable the court to review. He states that Samson Kipkoech Murei is not a party and did not participate in the suit and the application itself is incompetent.
I have considered the application and the brief submissions of parties and do find that Mr. Samson Kipkosgei Murei has been unprocedurally enjoined in this matter and therefore, his name is hereby struck out. That the application raises no new and important matter or evidenceat all contrary to the expectation of provisions of Rule 45 of the Civil Procedure Rules, 2010 that provides
“(45) (1) Any person considering himself aggrieved-
a. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgment to the court which passed the decree or made the order without unreasonable delay.”
The applicant has not demonstrated to this court that that there is mistake or error apparent on the face of the record, or any other sufficient reason.
This legal position flows from Section 80 of the Civil Procedure Act which gives a Court power to review its own order where an appeal has not been preferred against its order for sufficient cause.
I have looked at the application and do find there is no sufficient cause for review and that the applicant intends to re-agitate the matter that has already been determined and therefore to have a second bite at the cherry so to speak. This court cannot preside over an appeal on its own decision as it does not possess such jurisdiction. The application is otherwise not merited and is dismissed with costs.
Dated and delivered at Eldoret this 11th day of June, 2018.
A. OMBWAYO
JUDGE