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ELCAllowedNotice of Motion dated 29th October 2014 (suit re Title No. 220/3 PT UNS. Plot No. B Nairobi Mathare)· [2016] KEELC 718 (KLR)

Kamau Thiong’o & 2 others & Mary Wambui Mbugua & 2 others [2016] KEELC 718 (KLR)

High Court of Kenya
15 April 2016
LGL. Gacheru
1,241 words in judgment
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The bottom line

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A Kenyan court set aside its earlier ruling after a letter revealed the disputed Nairobi plot wasn't subject to county rates, and temporarily blocked its sale.

What this practically means

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Executive summary

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This ruling by L. Gacheru J of the High Court at Nairobi, delivered on 15th April 2016, determined a Notice of Motion dated 29th October 2014 in which the Plaintiffs sought review, variation and setting aside of a ruling of 11th July 2014 that had dismissed their application for an injunction against the sale of Title No. 220/3 PT UNS. Plot No. B Nairobi Mathare. The review was premised on new and important evidence - a letter dated 2nd December 2013 from the Nairobi City County confirming that the suit land originally belonged to the Government and not the Council, hence no land rates or stand premium were applicable, undercutting the stated ground for the intended sale. The Defendants opposed, arguing the letter predated the ruling by six months and the application was an abuse of process. The court set out the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, noting that although the letter predated the ruling and the Plaintiffs had not explained their failure to produce it, the letter's contents went to the root of the intended sale and the existence of the alleged rates required determination at trial. The court allowed the application, set aside the orders of 11th July 2014, granted a temporary injunction restraining sale or alienation of the parcel for 12 months unless extended, directed compliance with Order 11 to expedite the hearing, and ordered costs in the cause.

Key legal issues

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01

Whether the letter of 2nd December 2013 qualified as new and important matter for review under Order 45

Holding

Though the letter predated the ruling and the delay was unexplained, its contents were of utmost significance because the County disclaimed ownership, going to the root of the intended sale; review was warranted in the interest of justice.

Reasoning

The court acknowledged the letter predated the ruling and that the Plaintiffs did not adequately explain their failure to produce it. However, the letter's contents - that the property originally belonged to the Government and not the County - went to the root of the intended sale, meaning the actuality of accrued rates and stand premium is a matter for trial upon further evidence. In the interim, justice required safeguarding the parcel.

p. 3

Legal principles established

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  • The court's power to review its own order is conferred by Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, requiring discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason, without unreasonable delay.
  • A party seeking review on grounds of newly discovered evidence must explain why the evidence was not produced earlier despite due diligence.

Court orders

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  1. 1.The orders emanating from the ruling dated 11th July 2014 are set aside
  2. 2.A temporary order of injunction restraining the Defendants from selling, alienating, transferring, disposing of or otherwise dealing with Title No. 220/3 PT UNS. Plot No. B Nairobi Mathare – Kiamaiko
  3. 3.The injunction will last for 12 months from the date thereof and lapse unless extended by the court
  4. 4.Parties directed to comply with Order 11 of the Civil Procedure Rules and set the matter down for hearing without delay
  5. 5.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Section 80 and Order 45 of the Civil Procedure Act and Rules (review jurisdiction)

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, "Kamau Thiong’o & 2 others & Mary Wambui Mbugua & 2 others [2016] KEELC 718 (KLR)", Case Analysis (2016). Notice of Motion dated 29th October 2014 (suit re Title No. 220/3 PT UNS. Plot No. B Nairobi Mathare). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/718/eng@2016-04-15

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