Obonyo & 2 others v Lisaye (Environment and Land Appeal 18 of 2021) [2024] KEELC 532 (KLR)
The bottom line
#A Kenyan landowner who lost his case could not reopen it through review because his complaints belonged in 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 respondent required leave of the court to file the instant motion.
- 2.Whether the respondent has met the threshold to warrant a review of the judgment of this court.
- 3.Whether the judgment of this court determined the dispute with finality.
- 4.What orders should this court issue including an order as to costs.
Key legal issues
#Whether leave was required and whether the motion was filed out of time
No leave was necessary; review applications must simply be brought without unreasonable delay, which was satisfied.
The court noted both counsel wrongly assumed the 30-day appeal timeline under Section 16A(2) of the Environment and Land Court Act and Section 79G of the Civil Procedure Act applied to reviews. Order 45 Rule 1(1) only requires the application to be made without unreasonable delay. Judgment was delivered on 21/7/2022 and the motion filed 5/09/2022, which the court held was without unreasonable delay, though it censured laxity by counsel and the registry.
Whether the threshold for review was met
Not met; the grounds raised were matters for appeal, not review.
The court adopted the principles in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya. The alleged new evidence was neither asserted nor availed; the complaint about the limitation ruling required detailed reasoning and was not an error apparent on the face of the record; and a subsequent judgment in another suit cannot found review. Non-attachment of a decree was not fatal per Peter Kirika Githaiga & another v Betty Rashid.
Whether the judgment determined the dispute with finality and restraining orders could issue
Yes; the court was functus officio and could not issue restraining orders or reopen the case.
The prior judgment had dismissed the respondent's case with costs and the parties were at the execution stage with pending taxation. The respondent's attempt to obtain restraining orders was in reality an effort to reopen his case. Relying on Shollei v Judicial Service Commission, the court held it lacked jurisdiction to further determine issues after finalizing proceedings.
Legal principles established
#- An application for review under Order 45 Rule 1(1) must be made without unreasonable delay; the 30-day timeline for appeals does not apply to reviews.
- An erroneous conclusion of law or evidence is a ground for appeal, not review.
- A court that has delivered final judgment becomes functus officio and cannot entertain further relief from the parties.
Court orders
#- 1.The notice of motion dated 5/09/2022 is dismissed with costs to the appellants.
- 2.The file be placed before the Deputy Registrar on 12/03/2024 for directions on the bill of costs dated 2/02/2023.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 63(e) and 80 of the Civil Procedure Act and Orders 45 and 50(6) of the Civil Procedure Rules
Relief refused
#Leave to apply for review out of time and review/setting aside of the judgment dated 21/07/2022
The respondent failed to demonstrate new evidence, error apparent on the face of the record or sufficient reason; the grievances were grounds for appeal, not review.
Restraining orders against further encroachment on East Ugenya/Kathieno A/491
The court had become functus officio after delivering final judgment; the relief was an attempt to reopen the case.
Costs
Dismissed with costs to the appellants
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 find and hold the motion is filed without unreasonable delay.
All in all, the respondent's assertions would have been appropriate grounds for appeal and not review.
The proceedings that were before this court were perfected by its judgment and this court is now functus oficio.
For the foregoing reasons, I ultimately find the notice of notion dated 5/09/2022 is unmerited and it is hereby dismissed with costs to the appellants. I direct the file be placed before the Deputy Registrar on 12/03/2024 for directions on the bill of costs dated 2/02/2023.
Issues in the judgment
#The judgment does not state the case number or full title of the suit, and the judgment styles itself partly as a 'judgment' and partly as a 'ruling'.
Typographical errors in the judgment: 'functus oficio' and 'the notice of notion dated 5/09/2022'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obonyo & 2 others v Lisaye (Environment and Land Appeal 18 of 2021) [2024] KEELC 532 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/532/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.