Geoffrey Kemei v Plaintiff/Respondent (Review Application)
The bottom line
#A Kenyan land court refused to review its own judgment, confirming that disagreements over law must be resolved through an appeal, not a review application.
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 Defendant/Applicant discovered new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced at the time of the judgment
- 2.Whether there was a mistake or error apparent on the face of the record arising from the Plaintiff's alleged lack of locus standi
- 3.Whether the application for review was made without unreasonable delay
- 4.Whether the application should be allowed and the judgment of 18th June 2019 reviewed, set aside or varied
Key legal issues
#Whether there was discovery of new and important matter or evidence justifying review
No new and important matter or evidence was discovered; the grant to Joel Byegon and James Ngeno was issued on 15th July 2014, after the suit was filed, so it could not have existed in 2010 as the Applicant alleged
The Applicant's case rested on the claim that James Kipkorir Ngeno had taken out Letters of Administration filed in court on 26th May 2010, three years before the suit. The court found on the Applicant's own material that the full grant was issued on 15th July 2014, contradicting the claimed timeline, and that there was no material showing discovery of evidence not available with due diligence at the time of judgment.
Whether there was a mistake or error apparent on the face of the record
There was no error apparent on the face of the record; a mere erroneous decision or a different possible view is not a ground for review, and the alleged error concerned the law, which is a matter for appeal
Relying on Muyodi vs ICDC and National Bank of Kenya vs Ndungu Njau, the court held that an error apparent on the face of the record must stare one in the face without elaborate argument. Where the court's view in the original record is a possible one, it is not an error. The Applicant was really asking the court to reconsider the law and reach a different conclusion, which amounts to sitting on appeal on its own judgment.
Whether the court could treat the application as unopposed given the Respondent's failure to file submissions
The application would be treated as unopposed, but the court would still test its merits
The court noted that directions had been given for written submissions and only the Applicant complied. Failure to file submissions demonstrates inertia and lack of interest, warranting treatment of the application as unopposed, but this does not preclude testing the merits of the application against the statutory grounds for review.
Legal principles established
#- Section 80 of the Civil Procedure Act gives the court power to review its orders, but Order 45 Rule 1 of the Civil Procedure Rules restricts the grounds: discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay
- An error or omission on the record must be self-evident and should not require elaborate argument; a wrong appreciation of the law cannot be a ground for review
- Where a party alleges misapprehension of procedure or substantive law or wrongful exercise of discretion, the proper remedy is an appeal, not review
Court orders
#- 1.The application dated 13th December 2019 is dismissed in its entirety
- 2.No costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 45 Rule 1(1)(b) and 2(2) of the Civil Procedure Rules and Sections 1, 1A, 3 and 3A of the Civil Procedure Act
Relief refused
#Order of review, setting aside or varying the judgment delivered on 18th June 2019 and the decree and consequential orders
No new and important matter or evidence was discovered; no error apparent on the face of the record was established; the proper remedy for the alleged errors was an appeal, not review
Listing the matter for mention to take further directions on the way forward
This consequential prayer fell away with the dismissal of the application
Dismissal of the Plaintiff's case with costs following review
The court cannot sit on appeal on its own judgment; grounds for review under Order 45 were not met
Costs
No costs - the application was dismissed in its entirety with no 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.
I therefore find no merit in this application and proceed to dismiss it in its entirety with no costs.
The proper way to correct the alleged misapprehension of the procedure or the substantive law, or the judges' alleged wrongful exercise of discretion, as was brought out in the Applicants application and argument in the submission, was to Appeal the decision and not to seek for review
It is evident that the Applicant seeks that the court reconsiders the law and the "new evidence" and come to a different decision. This in effect would be tantamount to sitting on appeal on its own judgment.
Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out.
Issues in the judgment
#The judgment refers to the Applicant inconsistently by gender: 'I have considered the reason herein advanced by the Applicant in her quest' although the Applicant is Geoffrey Kemei, a male deponent
The Applicant's claim that Letters of Administration were filed in court on 26th May 2010 contradicts the judgment's own finding that the full grant was issued on 15th July 2014; the court resolved this against the Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Geoffrey Kemei v Plaintiff/Respondent (Review Application)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 13th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/228/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.