Sule (Suing as the legal representative of the Estate of Michael Sule Obuola - Deceased) v Hayer & 2 others
The bottom line
#The court refused to reopen a 2009 land consent judgment, confirming that review cannot replace an appeal and long delay kills such applications.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to entertain an application to review the judgment and decree passed in Kisumu HCCC No. 63 of 2006
- 2.Whether the Motion is competent and whether the Applicant has the capacity to bring it
- 3.Whether the Motion is res judicata and/or statute barred
- 4.Whether the Applicant has established a basis for review under section 80 of the Civil Procedure Act and Order 45 rule 1, and whether the Motion was brought without unreasonable delay
- 5.Whether the consent judgment ought in any event to be set aside on the grounds urged
- 6.What orders should issue, and who should bear the costs
Key legal issues
#Jurisdiction of the ELC to review a decree passed when the file was a High Court suit
The Court has jurisdiction because it is the same court that passed the decree; the file was transferred and renumbered, not replaced
Section 80 confers review power on the court which passed the decree. Kisumu HCCC No. 63 of 2006 was transferred to the ELC under Article 162(2)(b) and renumbered ELC 374 of 2015. Transfer and renumbering do not create a fresh suit, so the Motion was properly taken out in the same file, and Order 45 rule 5 permits hearing by another judge.
Whether res judicata and limitation bar the Motion
Section 7 res judicata technically does not apply to an interlocutory application within the same suit, and section 4(4) limitation does not apply, but the repeated litigation of the same grievance amounts to abuse of process
Section 7 speaks to a subsequent suit; the Motion is within the original suit. Section 4(4) bars actions upon a judgment, whereas review is a step within the suit. However, the Applicant has litigated the same grievance before three courts without appealing, engaging the court's inherent power to prevent abuse of process.
Whether grounds for review under section 80 and Order 45 rule 1 were established
No error apparent on the face of the record, no newly discovered matter, and the Motion was brought after twelve to fifteen years' unexplained delay
The Applicant alleged the court was misled, not that it erred on the record. The documents relied on were of thirty years' standing and within his knowledge. No copy of the 14th May 1996 revocation order was annexed, and Aburili J's ruling actually recorded that a joint grant issued on 14th May 1996, contradicting the Motion's premise. Delay of over twelve years was unexplained.
Whether the consent judgment should be set aside as a nullity
The Macfoy nullity argument fails because the factual premise of the 3rd Respondent's total lack of capacity is not established; fraud allegations were not particularised or proved
If a joint grant issued on 14th May 1996, the 3rd Respondent was an administrator when he filed suit in 2006 and the complaint reduces to non-joinder, a curable defect, not a nullity. Fraud and misrepresentation must be pleaded with particularity and proved to a higher standard; the Applicant's averments were mere assertion on the advice of counsel.
Applicant's own capacity under the limited grant ad litem
Doubtful but not decided; the Court proceeded on the assumption most favourable to the Applicant
The grant ad litem was limited to filing suit, valid for ninety days, yet the Motion was argued in 2026. Neither party addressed whether such a grant authorises prosecution of an interlocutory application or survives its expiry. The point was not taken by the Respondents and the Motion fails on other grounds.
Legal principles established
#- Renumbering a file on transfer of a suit to a successor court does not create a new cause; the review jurisdiction lies in the court which passed the decree, however renamed
- A review application under section 80 is not an action brought upon a judgment and is not barred by section 4(4) of the Limitation of Actions Act
- Evidence available all along and only lately marshalled is not newly discovered evidence for review
- Review cannot be used as a substitute for an appeal that was never lodged
- Financial hardship cannot of itself excuse gross delay in an application for review
Court orders
#- 1.The Applicant's Notice of Motion dated 20th January 2025 dismissed
- 2.Nothing in the ruling affects the orders made by the High Court at Kisumu in Miscellaneous Succession Cause No. E001 of 2024 on 13th June 2024, including the temporary injunction and fresh succession proceedings
- 3.Each party shall bear its own costs of the application
- 4.The file is closed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and the Environment and Land Court Act, 2011; sections 80 and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010
Relief refused
#Review and setting aside of the consent judgment, decree and consequential orders
No ground for review established; factual premise unproved; inordinate unexplained delay; fraud not particularised or proved
Temporary injunction restraining alienation of Kisumu/Ojola/1766 and Kisumu/Ojola/1767
Prayer spent by the ruling and properties already covered by Aburili J's injunction of 13th June 2024
Costs
Each party shall bear its own costs of the application
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.
Renumbering a file on transfer does not create a new cause.
An application for review under section 80 is not an action brought upon a judgment; it is a step taken within the suit in which the judgment was given.
Evidence available all along and only lately marshalled is not newly discovered evidence.
Review is not, and cannot be permitted to become, a substitute for an appeal that was never lodged.
A consent judgment may only be set aside on the same grounds as would justify the setting aside of a contract, such as fraud, mistake or misrepresentation.
A limited grant confers capacity only to the extent of, and for the duration of, its terms; it is not a general licence to litigate.
That the Applicant's Notice of Motion dated 20th January 2025 be and is hereby dismissed.
That each party shall bear its own costs of the application.
Issues in the judgment
#Cause styled Environment and Land Case but heard and neutrally cited in the Employment and Labour Relations Court
Date of the consent judgment sought to be reviewed is inconsistent across the record
Uncertainty whether the 14th May 1996 revocation related to a grant that existed; Aburili J's ruling recorded a joint grant issued that day
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sule (Suing as the legal representative of the Estate of Michael Sule Obuola - Deceased) v Hayer & 2 others", Case Analysis (2026). Environment and Land Case 374 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2516/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.