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ELCDismissedNot stated in judgment (Notice of Motion dated 22nd April 2016, filed 27th April 2016)· [2017] KEELC 2083 (KLR)

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)

Environment and Land Court
14 July 2017
1,697 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a Notice of Motion dated 22nd April 2016 and filed on 27th April 2016 under Order 45 Rules 1, 2 and 3, Order 22 Rule 25 and Order 51 of the Civil Procedure Rules, the Applicants, legal representatives of the Estate of James Ndambiri, sought stay of execution of, and review of, the ruling of 3rd October 2014 by which this Court dismissed their suit over rice holding No. 4388 WAMUMU as statute-barred. They relied on a bundle of letters (NN-3 and NN-4 series) exchanged by the deceased with the National Irrigation Board and government offices, contending these were new and important evidence, amounted to acknowledgement and admission of liability, and that their claim, being founded on trust and fraud, was not defeated by the Limitation of Actions Act. The 3rd Respondent opposed the application as an abuse of process founded on inordinate delay, with no new evidence and no pleaded fraud. The Court held that the order of 3rd October 2014 merely dismissed the suit and was a negative order incapable of being stayed, applying Western College v Oranga and Kanwal Sarjit Singh Dhiman. On review, the Court found the correspondences neither new nor important, not obtained through due diligence, and containing no admission, which must be clear, unambiguous and unequivocal. Fraud was never pleaded in the plaint. The application was also filed after 1½ years' unreasonable delay. The Notice of Motion was dismissed with costs to the 3rd Respondent on 14th July 2017.

Key legal issues

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01

Whether a stay of execution can issue in respect of a dismissal order

Holding

No - an order merely dismissing a suit is a negative order incapable of being stayed

Reasoning

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.

p. 2
02

Whether the annexed correspondences constitute new and important matter or evidence for review

Holding

No - the letters were routine correspondences available through due diligence and disclosed nothing new and important

Reasoning

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.

p. 3
03

Whether fraud or acknowledgement by the Respondent justified review

Holding

No - fraud was never pleaded in the plaint and the correspondences contained no clear admission

Reasoning

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.

p. 4
04

Whether the application was brought without unreasonable delay

Holding

No - the Applicants took 1½ years (from 3rd October 2014 to 27th April 2016) to file the application

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application for stay of execution of the ruling/order dated 3rd October 2014 is dismissed
  2. 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

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 51
  • Limitation of Actions Actgenerally

Cases cited (2)

  • Western College of Arts & Applied Sciences vs Oranga & Others
    1976 K.L.R 63
  • Kanwal Sarjit Singh Dhiman vs Keshavji Jiuraj Shah
    (2008) eKLR
Jurisdiction invoked
Order 45 Rules 1, 2 and 3, Order 22 Rule 25 and Order 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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

Cite this brief

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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.