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ELCPartially AllowedNot stated in judgment (suit commenced by plaint filed 26 January 2006)· [2017] KEELC 3168 (KLR)

Priscilla Jeruto Kisoso v Kiporot Ole Totona & 3 others [2017] KEELC 3168 (KLR)

Environment and Land Court
16 March 2017
3,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court refused to review its own order striking out parties to a land counterclaim, but gave the defendants a conditional second chance worth Kshs 1 Million.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel Lembus/Chemogoch/10, sued the defendants in 2006 seeking eviction, pleading that she acquired the land through a gift from a purchaser at a public auction conducted by KCB over a charge registered by the 1st defendant. The defendants' further amended defence filed in November 2011 included a counterclaim against five parties, but the 2nd to 5th defendants in the counterclaim were never served with summons. On 21 March 2016 the court struck out those parties, citing Order 5 Rules 1 and 2(7), since over four years had elapsed without service. The defendants applied on 3 October 2016 for review, attributing the non-service to advocate's mistake and invoking 'any other sufficient reason' under Order 45 Rule 1. The court held that no discovery of new matter or error apparent on the face of the record existed, that a bare assertion of mistake without an explanatory affidavit from the responsible advocate cannot constitute sufficient reason, and that the delay of over six months in filing the application was unreasonable and barred review relief. The application for review was accordingly disallowed. However, exercising its inherent jurisdiction under Section 3A of the Civil Procedure Act, the court allowed the defendants to proceed with the counterclaim against the 2nd to 5th defendants on conditions: they must either cede possession of the suit land to the plaintiff until determination of the suit or deposit Kshs. 1 Million as security, and pay thrown away costs of Kshs. 25,000/=, all within 30 days, failing which the orders of 21 March 2016 would stand. Dated and delivered at Nakuru on 16 March 2017 by Munyao Sila J.

Key legal issues

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01

Grounds for review under Order 45 Rule 1

Holding

The applicants failed to establish any ground for review: they conceded no new matter and no error apparent on the face of the record, and their reliance on 'any other sufficient reason' was unfounded because the advocate's mistake was unexplained on affidavit.

Reasoning

The court examined Order 45 Rule 1 and noted the grounds for review: discovery of new matter, error apparent on the face of the record, or any other sufficient reason, in each case without unreasonable delay. The supporting affidavit attributed non-service to advocate's mistake but no affidavit from the advocate explained the omission to extract and serve summons. Authorities relied on by the applicants involved explained mistakes, unlike the present unexplained omission.

p. 4
02

Reasonableness of delay in filing the review application

Holding

The delay of more than 6 months between the order of 21 March 2016 and the application of 3 October 2016 was unreasonable and barred relief under review.

Reasoning

The order was made on 21 March 2016 and the application filed on 3 October 2016. Although the applicants' advocate indicated on 12 May 2016 an intention to apply for review, no explanation was given for the ensuing period. The court held the provision requiring prompt movement was not placed in the rules without reason, and the delay barred the applicants from review relief.

p. 5
03

Court's inherent jurisdiction to allow service of the counterclaim on conditions

Holding

Although review was refused, the court invoked Section 3A of the Civil Procedure Act to permit the defendants to proceed with the counterclaim against the 2nd to 5th defendants, conditioned on ceding possession of the suit land or depositing Kshs. 1 Million as security, and payment of thrown away costs of Kshs. 25,000/=.

Reasoning

The court took seriously the right of every party to be heard and declined to deny the applicants that right in exercise of inherent jurisdiction. However, balancing the interests of the plaintiff, whose suit had been pending since 2006 and whose possession was being interfered with, the court imposed conditions designed to ensure the plaintiff is not prejudiced if the defendants lose, with the 21 March 2016 orders standing if conditions are not met.

p. 5

Legal principles established

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  • An application for review must be made without unreasonable delay regardless of the ground relied upon
  • A litigant alleging a mistake as a ground for review must explain how the mistake arose and the person responsible must own it up; a bare assertion of mistake is insufficient
  • Even where review is refused, the court retains inherent jurisdiction under Section 3A of the Civil Procedure Act to make orders necessary for the ends of justice, including on conditions

Court orders

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  1. 1.The application for review of the orders of 21 March 2016 is disallowed; those orders will stand
  2. 2.In exercise of inherent jurisdiction under Section 3A of the Civil Procedure Act, the defendants are allowed to proceed with their counterclaim against the 2nd to 5th defendants on condition that they cede possession of the suit land to the plaintiff until the case is heard and determined
  3. 3.Alternatively, if unable to cede possession, the defendants must deposit Kshs. 1 Million as security within 30 days; failing both conditions, leave to reinstate the counterclaim is refused
  4. 4.The applicants shall pay thrown away costs of Kshs. 25,000/= within 30 days, failing which the orders of 21 March 2016 will stand

Authorities

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Legislation

  • Civil Procedure RulesOrder 5 Rule 1
  • Civil Procedure RulesOrder 5 Rule 2(7)
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Savings & Loan Kenya Ltd vs Onyancha Bwomote
    Civil Appeal No. 70 of 2004
  • Commissioner of Income Tax vs Kencel Communications Ltd
    Civil Appeal No. 84 of 2007
Jurisdiction invoked
Inherent powers under Section 3A of the Civil Procedure Act; application for review under Order 45 Rule 1 of the Civil Procedure Rules

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, "Priscilla Jeruto Kisoso v Kiporot Ole Totona & 3 others [2017] KEELC 3168 (KLR)", Case Analysis (2017). Not stated in judgment (suit commenced by plaint filed 26 January 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3168/eng@2017-03-16

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