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ELCDismissedEldoret E & L Case (Review Application arising from Eldoret Environment and Land Case No. 461 of 2012)· [2017] KEELC 3220 (KLR)

Esther Ngendo v Sarathia Investments Ltd & 4 others [2017] KEELC 3220 (KLR)

Environment and Land Court
31 March 2017
2,519 words in judgment
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The bottom line

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The Environment and Land Court in Eldoret dismissed a landowner's attempt to revive her struck-out ownership suit because she filed the review application too late.

What this practically means

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Executive summary

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The applicant, Esther Ngendo, sought review, variation or vacation of orders made by Justice Silas Munyao on 26 February 2013 striking out Eldoret Environment and Land Case No. 461 of 2012, in which she had claimed ownership of land parcel Eldoret/Municipality/Block 7/107 by adverse possession. She also sought reinstatement of the suit and its consolidation with Eldoret E & L Case No. 2 of 2015. She alleged her former advocates failed to file a replying affidavit and that the court erred in finding she was a tenant and that her suit was res judicata. The respondent opposed, arguing an appeal had been filed, the review was delayed, and no review grounds existed. The court, Ombwayo J, traced the chronology: after the ruling, the applicant filed a notice of appeal and an application for extension of time in the Court of Appeal, which was dismissed by Murgor JA on 26 May 2015, closing the appellate avenue. The review application was filed on 23 September 2015, almost three months later. The court held this delay was unreasonable, noting the applicant appeared undecided between appeal and review. On the merits, the court held that a complaint that the judge was wrong on res judicata is a ground of appeal, not review; no error apparent on the face of the record, new and important matter, or other sufficient reason under Order 45 Rule 1 was demonstrated; and counsel's negligence could not be visited on the respondents. The application was dismissed with costs.

Key legal issues

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01

Whether the review application was filed without unreasonable delay

Holding

The delay was unreasonable - the application was filed on 23 September 2015, almost three months after the Court of Appeal application for extension of time was dismissed on 26 May 2015

Reasoning

The court traced the chronology: after the ruling of 26.2.2013 the applicant filed a notice of appeal, then an application for extension of time (UR 187 of 2013) which was dismissed by Murgor JA on 26 May 2015, closing the appellate avenue. The review application was then lodged on 23 September 2015. The court held the applicant was aware of the decision and was undecided whether to appeal or seek review, making the delay of over two months unreasonable.

p. 3
02

Whether grounds for review under Order 45 Rule 1 were established

Holding

No error apparent on the face of the record, no new and important matter or evidence, and no other sufficient reason was demonstrated

Reasoning

The applicant argued the judge erred in finding her suit res judicata and in finding she was a tenant. The court held that a grievance that a judge was wrong in his findings is a ground of appeal, not review. The applicant also failed to show that the evidence she sought to adduce could not, with due diligence, have been produced at the time of the ruling.

p. 4
03

Whether the applicant could blame her former advocates' inadvertence

Holding

No - the negligence of her advocates could not be visited on the respondents

Reasoning

The applicant claimed she was unaware of the striking-out application and that her former counsel failed to file a replying affidavit. The court found her advocates on record were aware of the application, and her explanation of being under medication did not make sense as the medication arose more than two months after the ruling.

p. 3

Legal principles established

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  • The power of review must be exercised within the framework of Section 80 of the Civil Procedure Act and Order 45 Rule 1, and whatever the ground, the application must be made without unreasonable delay
  • A party aggrieved by a finding on res judicata ought to appeal rather than apply for review under Order 45
  • A litigant cannot visit the negligence of her advocates on the respondents

Court orders

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  1. 1.The application for review of the orders of 26.2.2013 was dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure ActSection 7
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)

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, "Esther Ngendo v Sarathia Investments Ltd & 4 others [2017] KEELC 3220 (KLR)", Case Analysis (2017). Eldoret E & L Case (Review Application arising from Eldoret Environment and Land Case No. 461 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3220/eng@2017-03-31

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