M.O. Oseko & another v David Awori & 2 others [2017] KEELC 1822 (KLR)
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
#Key legal issues
#Whether the plaintiffs established a case for review of the ruling of 4th May 2007
No; the application failed for inordinate unexplained delay and lack of merit
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.
Whether the court would have ruled differently had it seen the plaintiffs' appearance and defence in HCCC No. 877 of 2003
No; the locus standi finding was not based solely on absence of a defence
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.
Whether the preliminary objection dated 16th June 2005 (lis pendens/illegality) should be determined at this stage
No; deferred to final submissions after the hearing of the consolidated suits
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.
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.The plaintiffs' Notice of Motion dated 4th February 2008 is dismissed with costs to the defendants
- 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
- 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.
- Meymuna Osman Gabow & 16 Others v. Mariam Abdi Mohamud, Independent Electoral and Boundaries Commission & Party of National Unity[2018] KEHC 7582 (KLR)19 Mar 2018distinguished
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.