Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedHCCC No. 870 of 2003 (consolidated with HCCC No. 2905 of 1993 and HCCC No. 877 of 2003)· [2017] KEELC 1822 (KLR)

M.O. Oseko & another v David Awori & 2 others [2017] KEELC 1822 (KLR)

High Court of Kenya (Environment and Land Court)
15 September 2017
3,349 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

The High Court dismissed the buyers' attempt to review a 2007 ruling because they waited eight months and the alleged error would not have changed the outcome.

What this practically means

#

Executive summary

#
The suit properties, L.R. No. 12219/3 and L.R. No. 12219/4, were the subject of a 1993 sale agreement between the plaintiffs and Lero Luno Enterprises and Nicholas Wandia Raballa. The transaction was never completed; while HCCC No. 2905 of 1993 (specific performance) was pending, the properties were transferred to the 3rd defendant and then to the 1st and 2nd defendants, prompting the present suit and the defendants' own HCCC No. 877 of 2003. All suits were consolidated in 2003. On 4th May 2007 Nambuye J declined to hear the plaintiffs' preliminary objection attacking HCCC No. 877 of 2003 (based on lis pendens under section 52 of the Transfer of Property Act 1882), holding the plaintiffs lacked locus standi. The plaintiffs' Notice of Motion dated 4th February 2008 sought review of that ruling, contending the court overlooked their appearance and defence on record, an error apparent on the face of the record. The defendants opposed, citing non-compliance with the directions in the ruling and abatement of HCCC No. 2905 of 1993 against the 1st defendant. Okong'o J dismissed the application: it was filed eight months after the ruling without explanation of the delay, and although the trial court apparently did not see the appearance and defence, the locus standi finding rested on additional independent grounds (misjoinder, non-joinder and different advocates on record), so the errors were not material. The preliminary objection was not struck out; the court directed that its issues be raised in final submissions after the hearing of the consolidated suits, which were to proceed. Costs were awarded to the defendants.

Key legal issues

#
01

Whether the plaintiffs established a case for review of the ruling of 4th May 2007

Holding

No; the application failed for inordinate unexplained delay and lack of merit

Reasoning

Order 45 requires review applications to be brought without unreasonable delay. The motion was filed eight months after the ruling with no explanation, only the argument that the defendants' claim was tainted with illegality, which the court had not yet determined. On the merits, although the trial court apparently lacked sight of the memorandum of appearance and defence, its locus standi finding rested on additional grounds (misjoinder/non-joinder and different advocates on record), so the outcome would have been the same. Grounds beyond the statutory scope of review could not assist the plaintiffs.

p. 4
02

Whether the court would have ruled differently had it seen the plaintiffs' appearance and defence in HCCC No. 877 of 2003

Holding

No; the locus standi finding was not based solely on absence of a defence

Reasoning

The ruling of 4th May 2007 held that locus standi is gained through service, entry of appearance and proper representation on record, and found the plaintiffs' advocates lacked standing both because they were not on record in HCCC No. 877 of 2003 and because of misjoinder/non-joinder of parties. Since these independent grounds supported the finding, correcting the perceived oversight would not have changed the result, defeating the claim of a material error apparent on the face of the record.

p. 5
03

Whether the preliminary objection dated 16th June 2005 (lis pendens/illegality) should be determined at this stage

Holding

No; deferred to final submissions after the hearing of the consolidated suits

Reasoning

The parties failed to comply with the directions given on 4th May 2007 to regularize pleadings. Since the consolidated suits - one pending for 24 years - must proceed, the court, in the exercise of its overriding objective powers under sections 1A, 1B and 3A of the Civil Procedure Act, directed that the issues in the preliminary objection be raised in final submissions after the hearing, paving the way for determination in the final judgment.

p. 5

Legal principles established

#
  • An application for review must be brought without unreasonable delay, and unexplained delay disentitles the applicant
  • An error apparent on the face of the record does not warrant review unless it affected the decision

Court orders

#
  1. 1.The plaintiffs' Notice of Motion dated 4th February 2008 is dismissed with costs to the defendants
  2. 2.In the event the plaintiffs still wish to pursue their preliminary objection dated 16th June 2005, they should raise the issues contained therein in their final submissions after the hearing of the consolidated suits, for determination in the court's final judgment

Authorities

#

Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure Actsections 1A, 1B and 3A
  • Civil Procedure RulesOrder 45 (rule 1(1))
  • Transfer of Property Act of 1882section 52

Cases cited (4)

  • Nyamogo & Nyamogo Advocates vs. Moses Kipkolum Kogo
    (2001) 1 E.A 173
  • Snell vs. Unity Finance Ltd
    (1963) 3 All ER 50
  • National Bank of Kenya Ltd vs. Wilson Ndolo Ayah
    Nairobi CA No. 199 of 2002
  • National Bank of Kenya Limited vs. Ndungu Njau
    Civil Appeal No. 211 of 1996
Jurisdiction invoked
Sections 80, 1A, 1B and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "M.O. Oseko & another v David Awori & 2 others [2017] KEELC 1822 (KLR)", Case Analysis (2017). HCCC No. 870 of 2003 (consolidated with HCCC No. 2905 of 1993 and HCCC No. 877 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1822/eng@2017-09-15

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