Ngororo v Ndutha & another [1994] KECA 93 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that even people who were never named in a land lawsuit can ask the court to reopen the judgment if it directly affects them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd respondent had locus standi to apply for review under section 80 of the Civil Procedure Act
- 2.Whether there was inordinate delay in filing the application for review
- 3.Whether there were sufficient grounds/reasons for granting the review
Key legal issues
#Locus standi of the 2nd respondent to apply for review
She had locus standi as a non-party with a direct interest in the suit premises who had been deprived of a hearing
Section 80 of the Civil Procedure Act uses the words 'any person' and 'for any sufficient reason'. The 2nd respondent claimed to have contributed KShs 1,000 towards the purchase price yet was never heard. A person with a direct interest affected by a judgment may apply for review even if not a party. The earlier rejection of a preliminary objection on this point by Masime J was unappealed and binding.
Whether the delay in filing the review application was inordinate
Given the peculiar circumstances - the respondents' eviction in 1980, the intervening originating summons and contempt proceedings - the filing of the review on 19th November 1983 was not inordinate
The 2nd respondent first learned of the suit when being evicted in 1980 following execution of the 1979 judgment. She sought help from the administration, filed an originating summons in 1981, and received respite through a court order to vacate by 30th November 1982. In that context, filing the review a year later was not inordinate delay. Masime J had also rejected this objection and that ruling bound the Court.
Whether there was sufficient reason for review notwithstanding non-filing of an appeal and contradictions in the 2nd respondent's evidence
Sufficient reason existed; Simpson CJ's reference to 'an apparent miscarriage of justice' related to the 2nd respondent's unheard interest, and the trial judge's credibility findings were not disturbed
The 'apparent miscarriage of justice' concerned the 2nd respondent's contribution of KShs 1,000 on which she was never heard; with no evidence of her interest on record, an appeal by her was impossible. On the contradictions, Simpson CJ noted them but found her evidence had a ring of truth. Credibility findings and discretionary grants of review are not lightly interfered with on appeal.
Legal principles established
#- A ruling not appealed against is binding in a subsequent appeal that is not directed at it
- A non-party with a direct interest affected by a judgment is entitled to apply for review under section 80 of the Civil Procedure Act
- Section 80 covers a person deprived of a hearing as a party despite direct interest in the litigation or its result
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- Suit over plot No. 16 Ndaragwa Settlement Scheme (number not stated)
- Jurisdiction invoked
- Appeal against an order of the High Court granting review under section 80 of the Civil Procedure Act (provision not expressly stated as the basis of appellate jurisdiction)
Relief refused
#Setting aside the order of Simpson, CJ granting review and ordering a retrial
The Court found no error in the exercise of discretion; the 2nd respondent had locus standi, delay was not inordinate, and there was sufficient reason for review
Costs
No order as to costs - each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We are bound by that ruling and we, therefore, reject all the grounds of appeal relating to these two issues.
any person, though not a party to the suit, whose direct interest is being affected by the judgment therein is entitled to apply for a review
The words “any person” and “for any sufficient reason” used in section 80 of the Civil Procedure Act clearly are meant to include a person who has a direct interest in a litigation or its result but has been deprived of a hearing as a party in relation to his interest.
the eventual filing of the review application a year later on 19th November, 1983, might not under such peculiar circumstances perhaps be considered as an inordinate delay.
In our view the Chief Justice did not err in the exercise of his discretion in granting the application for review. We dismiss the appeal but make no order as to costs.
Issues in the judgment
#The judgment refers both to 'section 80 of the Civil Procedure Act' and, in one passage, to 'section 80 of the Civil Procedure Code'
The record of appeal is described as unsatisfactory in the judgment itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngororo v Ndutha & another [1994] KECA 93 (KLR)", Case Analysis (1994). Civil Appeal (Nakuru High Court suit appealed) – as per judgment record. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/93/eng@1994-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.