Francis Nyauma Obare & 3 others v Maina Marwanga Omwamire & another [2021] KEELC 186 (KLR)
The bottom line
#The Environment and Land Court in Nyamira dismissed a four-year-late attempt to review a land judgment, confirming that execution problems must be raised on appeal, not review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether any of the statutory grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (discovery of new and important matter, error apparent on the face of the record, or sufficient reason) has been satisfied
- 2.Whether the Application for review was made without unreasonable delay
Key legal issues
#Whether the Surveyor's Report and alleged non-implementability of the decree constitute new and important matter or sufficient reason for review
No. The complaint that the decree is incapable of execution is a ground for appeal, not review, and sifting through the evidence again would amount to sitting on judgment against a brother judge's judgment.
The court held that review is confined to the statutory grounds in Order 45. The applicants, who were represented by counsel throughout the trial, were essentially seeking to reopen the merits because the Land Registrar reported the orders were not implementable. That grievance lies on appeal. Relying on Menginya Salim Murgani, the court noted it is functus officio after judgment, and that allowing review would send the message that litigation never ends.
Whether the application was made without unreasonable delay
No. The decision sought to be reviewed was delivered on 17th February 2017 and the application was filed on 28th April 2021, a delay of more than 4 years for which no satisfactory explanation was given.
Order 45 requires an application for review to be made without unreasonable delay. The court found the delay of over four years unexplained and unreasonable, and observed that even if the substantive grounds had been met, the application would fail on delay alone. It referenced authority that unexplained delay of more than three months in filing for review is unreasonable.
Legal principles established
#- A court becomes functus officio after passing judgment and cannot revisit the judgment on merits save as provided by law
- A party aggrieved by the perceived errors of a decree that is allegedly incapable of execution must appeal rather than seek review; review cannot be used as an appeal in disguise
- An application for review must be made without unreasonable delay; unexplained delay of several years is fatal
Court orders
#- 1.The Application dated 28/4/21 is dismissed
- 2.Costs of the Application awarded to the Plaintiffs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)
Relief refused
#Review and/or variation of the orders issued on 17/2/2017
The applicants' complaint that the decree is incapable of execution is a ground for appeal, not review; no new and important matter, error apparent on the face of the record, or sufficient reason was demonstrated, and the application was brought after an unexplained delay of more than 4 years
Costs
The Application dated 28/4/21 fails and is dismissed with costs to the Plaintiffs.
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.
The upshot of this is that the Application dated 28/4/21 fails and is dismissed with costs to the Plaintiffs.
It is a general principle of law that a Court after passing Judgment, becomes functus officio and cannot revisit the Judgment on merits, or purport to exercise a judicial power over the same matter, save as provided by law.
Whenever a party comes to Court, he should do so with all his arrows in his quiver ready to shoot at the enemy without imagining that he will have another chance of coming back to the war field.
These are not grounds for Review but grounds for Appeal. Moreover, failure to analyze evidence properly is not a ground for Review.
Issues in the judgment
#Internal inconsistency in the date of the judgment under review: the ruling variously refers to the decision as given on 15th March, 2017 and as delivered on 17th February, 2017
The Motion seeks review of orders 'issued on the 17/2/2017' while the submissions refer to 'the Judgment delivered on 17/02/2021'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Nyauma Obare & 3 others v Maina Marwanga Omwamire & another [2021] KEELC 186 (KLR)", Case Analysis (2021). Notice of Motion dated 28th April, 2021 (arising from suit over land parcels NORTH MUGIRANGO/BOISANGA/1485, 4361, 4362, 1494 and 1496). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/186/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.