Kellen Karimi Nduma Ndambiri & another (suing as Legal Representative of the Estate of James Ndambiri (Deceased) v Attorney General & 2 others [2017] KEELC 2083 (KLR)
The bottom line
#A Kenyan court dismissed a bid to revive a time-barred land claim, ruling a dismissal order cannot be stayed and ordinary letters are not new evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether a stay of execution can issue in respect of a dismissal order
No - an order merely dismissing a suit is a negative order incapable of being stayed
The Court relied on Western College of Arts & Applied Sciences v Oranga and Kanwal Sarjit Singh Dhiman v Keshavji Jiuraj Shah, holding that since the ruling of 3rd October 2014 dismissed the suit without directing any party to do anything, refrain from doing anything or pay any sum, there is nothing to execute save possibly costs. The application for stay therefore failed.
Whether the annexed correspondences constitute new and important matter or evidence for review
No - the letters were routine correspondences available through due diligence and disclosed nothing new and important
Order 45 Rule 1(1) requires discovery of new and important matter or evidence which, after due diligence, was not within the applicant's knowledge or could not be produced when the order was made. The Court found the annexed letters were routine correspondences exchanged by the deceased in pursuit of his rice holding, were not shown to have become newly available, and disclosed no new and important evidence.
Whether fraud or acknowledgement by the Respondent justified review
No - fraud was never pleaded in the plaint and the correspondences contained no clear admission
The plaint filed on 15th February 2012 did not plead fraud and was never amended, so the suit could not now be recast as founded on fraud. The Court also perused the correspondences and found no admission of liability; had there been an admission in the pleadings, the Applicants should have sought judgment on it.
Whether the application was brought without unreasonable delay
No - the Applicants took 1½ years (from 3rd October 2014 to 27th April 2016) to file the application
Order 45(1) requires review applications to be filed without unreasonable delay. A delay of one and a half years, unexplained, independently disentitled the Applicants to the discretionary remedy of review.
Legal principles established
#- A negative order, which does not direct any party to do or refrain from doing anything or to pay any sum, is incapable of execution and cannot be stayed
- An admission must be clear, unambiguous and unequivocal - plain and obvious
- An application for review under Order 45 must be made without unreasonable delay
Court orders
#- 1.The application for stay of execution of the ruling/order dated 3rd October 2014 is dismissed
- 2.The Applicants' Notice of Motion dated 22nd April 2016 and filed 27th April 2016 is wholly without merit and is accordingly dismissed with costs to the 3rd Respondent
- Jurisdiction invoked
- Order 45 Rules 1, 2 and 3, Order 22 Rule 25 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joseph Mumero Wanyama v Jared Wanjala Lyani & another [2021] KEELC 2948 (KLR)[2021] KEELC 2948 (KLR)10 Jun 2021
- Joseph Mumero Wanyama v Jared Wanjala Lyani & another [2021] KEELC 2948 (KLR)[2021] KEELC 2948 (KLR)10 Jun 2021
- Grace Ruguru Mwangi v Mary Wangari Maina & 2 others [2021] KEELC 2921 (KLR)[2021] KEELC 2921 (KLR)10 Jun 2021
Cite this brief
#Cite this brief
Caselaw, "Kellen Karimi Nduma Ndambiri & another (suing as Legal Representative of the Estate of James Ndambiri (Deceased) v Attorney General & 2 others [2017] KEELC 2083 (KLR)", Case Analysis (2017). Not stated in judgment (Notice of Motion dated 22nd April 2016, filed 27th April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2083/eng@2017-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.