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ELCDismissedELCA 21 of 2015 (implied from registry reference JUD/KER/ELCA/21/15)· [2017] KEELC 2645 (KLR)

Michael Kirara Muraya v County Commissioner Murang’a County & another [2017] KEELC 2645 (KLR)

Environment and Land Court
19 May 2017
1,779 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 refused to review its judgment because late-filed court submissions were the party's own fault, not the court's mistake.

What this practically means

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Executive summary

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This is a ruling on the Respondents' application to review or set aside the Environment and Land Court's judgment delivered on 12th May 2016 in an appeal. The application, premised on Article 159 of the Constitution and Order 45 Rule 1 of the Civil Procedure Rules, was grounded on the contention that the Respondents' submissions stamped 16th March 2016 had been ignored by the Court. Justice Olao investigated and accepted the explanation of the registry officer that the submissions were lodged and stamped after the Court had risen on 16th March 2016, when the file was already in the judge's custody following the taking of a judgment date. The Court held that it had expressly recorded in the judgment that it had not had the benefit of the Respondents' submissions because none were on the record. Applying Order 45 Rule 1(1), the Court found no discovery of new and important matter, no mistake or error apparent on the face of the record attributable to the Court, and no other sufficient reason. The application was also filed six months after judgment with no explanation, amounting to unreasonable delay. Relying on National Bank of Kenya Ltd v Ndungu Njau and Francis Origo v Jacob Mungala, the Court dismissed the application with no order as to costs, and advised on proper registry practice once a judgment date has been taken.

Key legal issues

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01

Requirements for review under Order 45 Rule 1(1)

Holding

An applicant must prove discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason, and file without unreasonable delay; none was established.

Reasoning

The court restated the triple test from Order 45 Rule 1(1) as amplified by the Court of Appeal in Francis Origo v Jacob Mungala. The Respondents' submissions were never on the file when judgment was drafted, so their non-consideration was neither new matter nor a Court error. The six-month unexplained delay was itself fatal.

p. 3
02

Whether failure to consider late-stamped submissions is an error attributable to the Court

Holding

No; the fault lay with the Respondents who lodged submissions in the registry after the Court had risen, and with the registry for accepting them.

Reasoning

The registry officer explained, and the Court accepted, that the submissions were stamped after the Court had risen once the judgment date had been taken. The file was in the judge's custody, so the Court could not have considered them. The error is attributed to the Respondents' non-compliance with timelines, not to the Court.

p. 3

Legal principles established

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  • Misconstruing a statute or provision of law is not a ground for review
  • A mistake or error under Order 45 Rule 1(1) must be one attributable to the Court, self-evident on the record and requiring no elaborate argument
  • Once a judgment date is taken, no further pleadings or submissions may be received by the registry except with the direction of the judicial officer

Court orders

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  1. 1.The application dated 14th September 2016 and filed on 5th October 2016 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure RulesOrder 45 Rule 1(1)

Cases cited (2)

  • National Bank of Kenya Ltd vs Ndungu Njau
    Civil Appeal No. 211 of 1996
  • Francis Origo & Another vs Jacob Mungala
    (2005) 2 K.L.R 307
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules and Article 159 of the Constitution

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, "Michael Kirara Muraya v County Commissioner Murang’a County & another [2017] KEELC 2645 (KLR)", Case Analysis (2017). ELCA 21 of 2015 (implied from registry reference JUD/KER/ELCA/21/15). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2645/eng@2017-05-19

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