Cherret v Lapendo (Environment & Land Case 258 of 2017) [2024] KEELC 5206 (KLR)
The bottom line
#A Kenyan land court dismissed a bid to revive a judgment, confirming that review applications must attach the order being reviewed or they will fail.
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 Applicant's application meets the threshold for review under Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act
- 2.Whether the Defence and Counterclaim filed on behalf of the estate of the late Harold William Blunt ought to be struck out and judgment entered against the Defendant
- 3.Whether the application is legally and procedurally competent for failure to annex the impugned order
Key legal issues
#Whether the applicant met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1
The applicant failed to demonstrate an error apparent on the face of the record; the complaint about the joinder of the estate was a matter for appeal, not review
The court noted there was a valid existing order of 14th June 2023 setting aside the ex-parte judgment and deeming the defence properly filed after finding triable issues. The argument that the estate was irregularly joined without a joinder order did not constitute a mistake or error apparent on the face of the record, as the order was made after considering an application. The proper remedy for an aggrieved party is an appeal, not review.
Whether the application was competent absent annexure of the impugned order
The application was defective and fatally so for failure to annex the formal order sought to be reviewed
Relying on Suleiman Murunga v Nilestar Holdings Limited, the court held that an applicant for review ought to annex a formal extracted decree or order in respect of which review is sought. The applicant did not annex the impugned order of 14th June 2023, so the application could not bring itself within the ambit of Order 45 of the Civil Procedure Rules and was incurably defective.
Legal principles established
#- A party aggrieved by an order of the court should challenge it on appeal rather than through review disguised as correction of an error apparent on the face of the record
- An application for review must be accompanied by the formal decree or order sought to be reviewed; failure to annex it renders the application fatally defective
Court orders
#- 1.The application dated 10th August, 2023 is dismissed
- 2.Costs of the application are awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A, 63 and 80 of the Civil Procedure Act and Sections 3 and 13(7) of the Environment and Land Court Act; Order 45 Rule 1 of the Civil Procedure Rules
Relief refused
#Review and setting aside of the ruling and order of 14th June 2023 deeming the Defence properly filed, and striking out of the estate of Harold William Blunt and the Defence and Counterclaim
The alleged irregular joinder does not amount to an error apparent on the face of the record; the applicant's remedy was an appeal, and the application was defective for failure to annex the impugned order
Judgment against the Defendant in terms of prayer (iv) of the Plaint, or alternatively reinstatement of the judgment and decree of 18th May 2021
Not reached on the merits as the application failed at the review threshold
Costs
Costs of the application awarded to the respondent.
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 is that the application dated 10th August, 2023 is hereby dismissed with costs to the respondent.
I find that this argument is fundamentally flawed, as it does not amount to an error apparent on the face of the record.
If the applicant was aggrieved by the ruling of the court, then she should have filed an appeal.
a formal decree or order is a prerequisite before an applicant can bring himself/herself within the ambit of order 45 of the Civil Procedure Rules as relates to review of the decree or order
Issues in the judgment
#The same authority is cited twice with different years/citations by opposing parties (National Bank of Kenya Ltd v Ndungu Njau appears as both [1997] eKLR and [1996] KLR)
The case number of this suit is not stated anywhere in the judgment, including in the title or disposition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherret v Lapendo (Environment & Land Case 258 of 2017) [2024] KEELC 5206 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5206/eng@2024-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.