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ELCDismissed

Obonyo & 2 others v Lisaye (Environment and Land Appeal 18 of 2021) [2024] KEELC 532 (KLR)

Environment and Land Court
8 February 2024
2,958 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a ruling of the Environment and Land Court at Siaya (A. Y. Koross, J) delivered on 8 February 2024 on the respondent's notice of motion dated 5/09/2022, brought under Sections 63(e) and 80 of the Civil Procedure Act and Orders 45 and 50(6) of the Civil Procedure Rules. Wilson Odenyo Lisai, the respondent, sought leave to apply for review out of time of the court's judgment of 21/07/2022, which had dismissed his claim; alternatively, he sought restraining orders against further encroachment on East Ugenya/Kathieno A/491 and reinstatement of the lower court judgment. He contended the court had misapprehended evidence in Arbitration Case No. 37 of 1969 and Siaya District Land Disputes Tribunal Case No. Sya/87/2001, and had wrongly declared his suit time barred. The appellants opposed, arguing the motion was a delay tactic and did not meet the review threshold, and further that failure to attach a decree was fatal. The court framed four issues: whether leave was required; whether the review threshold was met; whether the judgment was final; and costs. It held no leave was needed and the motion was filed without unreasonable delay, though censuring laxity by counsel and the registry. On the merits, it found the alleged new evidence unproven, the alleged errors not apparent on the face of the record, and the complaints matters for appeal rather than review, adopting the Court of Appeal's decision in Francis Origo v Jacob Kumali Mungala. It further held it was functus officio after delivering final judgment, relying on Shollei v Judicial Service Commission. The motion was dismissed with costs to the appellants, with the file to be placed before the Deputy Registrar on 12/03/2024 for directions on a pending bill of costs.

Questions the Court framed

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

  1. 1.Whether the respondent required leave of the court to file the instant motion.
  2. 2.Whether the respondent has met the threshold to warrant a review of the judgment of this court.
  3. 3.Whether the judgment of this court determined the dispute with finality.
  4. 4.What orders should this court issue including an order as to costs.

Key legal issues

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01

Whether leave was required and whether the motion was filed out of time

Holding

No leave was necessary; review applications must simply be brought without unreasonable delay, which was satisfied.

Reasoning

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.

p. 5
02

Whether the threshold for review was met

Holding

Not met; the grounds raised were matters for appeal, not review.

Reasoning

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.

p. 6
03

Whether the judgment determined the dispute with finality and restraining orders could issue

Holding

Yes; the court was functus officio and could not issue restraining orders or reopen the case.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 5/09/2022 is dismissed with costs to the appellants.
  2. 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

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

majority

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

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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.

p. 6

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.

p. 7

Costs

Dismissed with costs to the appellants

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.

I find and hold the motion is filed without unreasonable delay.
p. 5Timeliness of review applications
All in all, the respondent's assertions would have been appropriate grounds for appeal and not review.
p. 6Distinction between review and appeal
The proceedings that were before this court were perfected by its judgment and this court is now functus oficio.
p. 7Functus officio
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.
p. 7Final orders and costs

Issues in the judgment

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minor

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'.

minor

Typographical errors in the judgment: 'functus oficio' and 'the notice of notion dated 5/09/2022'.

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, "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.