Esther Ngendo v Sarathia Investments Ltd & 4 others [2017] KEELC 3220 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the review application was filed without unreasonable delay
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
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.
Whether grounds for review under Order 45 Rule 1 were established
No error apparent on the face of the record, no new and important matter or evidence, and no other sufficient reason was demonstrated
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.
Whether the applicant could blame her former advocates' inadvertence
No - the negligence of her advocates could not be visited on the respondents
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.
Legal principles established
#- 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
#- 1.The application for review of the orders of 26.2.2013 was dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.