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ELCDismissedEnvironment and Land Appeal 5 of 2022 (Formerly Migori ELC Appeal No. E005 of 2021)

Tagaya v Onyango & another

Environment and Land Court
17 October 2023
GOGMA Ongondo
1,201 words in judgment
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The bottom line

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A Kenyan land court refused to review its own judgment because the applicant knew the facts all along and had already appealed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Homa Bay (GMA Ongondo, J) determined a notice of motion dated 30th March 2023 by Jennifer Aoko Onyango (1st defendant/applicant) seeking review of the court's judgment of 31st January 2023, on the ground of an apparent error on the face of the record on a substantial point of law relating to the court's computation of the limitation period. She contended she discovered in 2018, upon issuance of her title deed, that only 0.4 hectares had been allocated over Lambwe West B/2250, and that her counterclaim was therefore filed within time. The appellant, Patrick Ogol Tagaya, opposed, arguing the alleged error was within the applicant's knowledge, that an erroneous view can only be corrected on appeal, and that the application was brought too late without explanation. The Land Registrar did not respond. The court framed two issues: whether an apparent error and sufficient cause for review existed under Order 45 Rule 1(a) of the Civil Procedure Rules, 2010, and whether the applicant was entitled to costs. Applying section 80 of the Civil Procedure Act and the Simani v Magotswe authority, the court held the alleged discovery was not a new matter, having been within the applicant's knowledge and dealt with by both the trial court and this court, and that there was no due diligence. Further, since the applicant had lodged a notice of appeal deeming an appeal to the Court of Appeal duly lodged under Order 42 Rule 6(4), the matter could not be heard simultaneously by this court and the Court of Appeal. The application was dismissed with costs to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there is an apparent error on the face of the record and sufficient cause for review of the judgment delivered on 31st January 2023 under Order 45 Rule 1(a) of the Civil Procedure Rules, 2010
  2. 2.Whether the applicant is entitled to the costs of the application

Key legal issues

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01

Whether an apparent error on the face of the record existed to warrant review under Order 45 Rule 1(a)

Holding

No apparent error existed; the alleged error regarding the acreage and limitation computation was within the applicant's knowledge and was dealt with by both the trial court and this court

Reasoning

The applicant claimed she discovered in 2018 that only 0.4 hectares had been allocated to her per the title deed. The court found from the statement of defence and counterclaim dated 26th June 2019, the trial court's judgment and this court's judgment that the applicant had knowledge of the error throughout. Matters within a party's knowledge at trial cannot found review, and there was no due diligence on her part.

p. 3
02

Whether the pendency of an appeal affects the court's jurisdiction to review its own judgment

Holding

Since a notice of appeal had been lodged deeming an appeal to the Court of Appeal duly lodged, it would not be right for the matter to be heard simultaneously by this court and the Court of Appeal

Reasoning

The applicant had filed a notice of appeal dated 24th February 2023 and filed on 28th February 2023. Under Order 42 Rule 6(4) of the Civil Procedure Rules, 2010, an appeal to the Court of Appeal is deemed duly lodged. Relying on the Job Kilach authority, the court held that parallel proceedings on the same matter in this court and the Court of Appeal would be improper.

p. 3

Legal principles established

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  • A party cannot obtain review on the basis of matters that were within its knowledge and could have been produced at the initial trial
  • A matter should not be heard simultaneously by the High Court on review and the Court of Appeal where an appeal has been lodged

Court orders

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  1. 1.The notice of motion dated 30th March 2023 seeking review of the judgment delivered on 31st January 2023 is dismissed
  2. 2.Costs of the application to abide the outcome of the appeal at the Court of Appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

GO
majority

Wrote the judgment

Jurisdiction invoked
Order 45 Rule 1(a) of the Civil Procedure Rules, 2010; sections 80 and 3A of the Civil Procedure Act (Cap 21)

Relief refused

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Review of the judgment delivered on 31st January 2023

No apparent error on the face of the record; the alleged error was within the applicant's knowledge and was dealt with by both courts; no sufficient reason for review

Costs of the application

Costs were not awarded to the applicant but made to abide the appeal

p. 3

Costs

Costs of the application to abide the outcome of the appeal at the Court of Appeal

Quotable passages

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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 applicant should not seek to introduce new evidence which was in any case was within the knowledge of that applicant and could have been produced at the initial trial thus, review sought does not apply
p. 3Review - matters within applicant's knowledge
Clearly, it would not be right for this matter to be heard simultaneously by this court and the Court of Appeal
p. 3Parallel review and appeal proceedings
Accordingly, the application is hereby dismissed.
p. 3Final orders - dismissal of review application
In the obtaining circumstances, costs of this application to abide the outcome of appeal at the Court of Appeal.
p. 3Final orders - costs

Issues in the judgment

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minor

Party designations inconsistent: application styled '1st defendant/applicant' and '2nd respondent' in an appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tagaya v Onyango & another", Case Analysis (2023). Environment and Land Appeal 5 of 2022 (Formerly Migori ELC Appeal No. E005 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20751/eng@2023-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.