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ELCDismissedNot stated in judgment (suit concerning GATURI/GITHIMU/1235 and NTHAWA/RIANDU/1834)

Teresia Mabuti Njagara v Njagara Ngure [2016] KEELC 482 (KLR)

High Court of Kenya
30 September 2016
1,846 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed a man's attempt to reopen a land-division judgment because he waited nearly a year without explanation.

What this practically means

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Executive summary

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This was a ruling on the defendant/applicant's Notice of Motion dated 15th March 2016, brought under Order 9 Rule 8 and Order 45 Rule 1 of the Civil Procedure Rules, seeking leave for new advocates to come on record and, principally, review of the court's judgment of 20th April 2015 which ordered equal sharing of land parcels GATURI/GITHIMU/1235 (approx. 14 acres) and NTHAWA/RIANDU/1834 (approx. 3 acres) between the applicant and the plaintiff/respondent. The applicant sought to have the half share go to the respondent and her eight children and to have only two acres of NTHAWA/RIANDU/1834 available for division, on the grounds that the court had not been told he had sixteen children by two wives, and that he had sold one acre to Consolata Gichoni under a pending injunction. The plaintiff opposed, contending all information was available at the hearing and that the application was an afterthought to pre-empt execution. The court found the application was filed almost a year after judgment with no explanation, an unreasonable delay that alone disentitled the applicant to review, consistent with Francis Origo and other authorities. On the merits, the matters relied on were within the applicant's own knowledge at the hearing, and no error apparent on the record or other sufficient reason existed. The court also held that Article 159(2)(d) and the Oxygen Principles cannot shield parties who disregard rules and timeliness. The application was dismissed with costs to the plaintiff/respondent.

Questions the Court framed

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

  1. 1.Whether the application for review was brought without unreasonable delay as required under Order 45(1) of the Civil Procedure Rules
  2. 2.Whether the applicant demonstrated discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason to warrant review of the judgment of 20th April 2015
  3. 3.Whether the principles of Article 159(2)(d) of the Constitution and the Oxygen Principles could cure the application's defects

Key legal issues

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01

Unreasonable delay in applying for review

Holding

The application filed on 15th March 2016 in respect of a judgment delivered on 20th April 2015 was unreasonably delayed and failed on that ground alone

Reasoning

Order 45 Rule 1 requires a review application to be made without unreasonable delay. The judgment was delivered on 20th April 2015 and the decree extracted on 6th May 2015, yet the application was filed almost one year later with no explanation. Following the Court of Appeal in Francis Origo, and the authorities of Hassan v National Bank of Kenya and Kenfreight (E.A) Ltd where three-month delays were held unreasonable, the court found the delay disentitled the applicant to review.

p. 2
02

Absence of new and important matter or error apparent on the record

Holding

The number of the applicant's children and the sale of one acre of NTHAWA/RIANDU/1834 were matters within his knowledge at the hearing and could not ground a review

Reasoning

The applicant deponed that the court did not consider his sixteen children and that he had sold one acre of NTHAWA/RIANDU/1834 to Consolata Gichoni. However, he had testified on 9th December 2014 about his other wife and children, and the sale to a third party was of his own doing. Neither amounted to discovery of new and important matter after due diligence, nor a mistake or error apparent on the face of the record, nor any other sufficient reason under Order 45.

p. 3
03

Invitation to apply Article 159(2)(d) and the Oxygen Principles

Holding

Article 159(2)(d) and the overriding objective cannot be used to excuse non-compliance with rules and timeliness

Reasoning

Counsel for the applicant urged the court to invoke equity, social justice and Article 159(2)(d) to avoid technicalities. The court accepted that it is enjoined to administer justice without undue regard to technicalities, but held, relying on Nicholas Kiptor Arap Korir Salat v IEBC, that these principles were not meant to overthrow procedural rules or protect parties who disregard timeliness. Deciding the application on the merits, the court found no basis for review in any event.

p. 3

Legal principles established

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  • An application for review must be brought without unreasonable delay; unexplained delay of almost one year disentitles an applicant to the remedy of review
  • Article 159(2)(d) of the Constitution and the Oxygen Principles were not meant to overthrow the rules of procedure or shield parties who disregard rules and timeliness
  • Matters that were within an applicant's own knowledge at the hearing do not constitute new and important matter or evidence for review

Court orders

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  1. 1.Leave for Ms Muthike Advocate to come on record for the defendant, allowed on 13th April 2016
  2. 2.The Notice of Motion dated 15th March 2016 seeking review of the judgment dated 20th April 2015 dismissed
  3. 3.Costs of the application awarded to the plaintiff/respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 45 Rule 1 and Order 9 Rule 8 of the Civil Procedure Rules; Section 80 of the Civil Procedure Act (review jurisdiction)

Relief refused

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Review and setting aside of the judgment dated 20th April 2015 and the orders reallocating the share of land parcels GATURI/GITHIMU/1235 and NTHAWA/RIANDU/1834 and restricting division to 2 acres of NTHAWA/RIANDU/1834

The application was filed almost one year after the judgment with no explanation for the delay, which was unreasonable, and the matters relied on were within the applicant's knowledge at the time of the hearing, with no error apparent on the record

p. 4

Costs

Application dismissed with costs to the plaintiff/respondent

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.

In my view, an un-explained delay of almost one year is clearly un-reasonable and disentitles the defendant/applicant herein to the remedy of review sought. On that basis alone, this application must fail.
p. 3unreasonable delay in review applications
It is accordingly dismissed with costs to the plaintiff/respondent.
p. 4final orders
Clearly, the number of his children and the selling of part of his land to a third party were all matters within his knowledge.
p. 3new and important matter requirement
neither Article 159 of the Constitution nor the Oxygen Principles which enjoin the Courts to do substantial justice were meant to overthrow the rules of procedure or provide cover to parties who disregard rules and timeliness
p. 3limits of Article 159(2)(d) and the Oxygen Principles

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, "Teresia Mabuti Njagara v Njagara Ngure [2016] KEELC 482 (KLR)", Case Analysis (2016). Not stated in judgment (suit concerning GATURI/GITHIMU/1235 and NTHAWA/RIANDU/1834). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/482/eng@2016-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.