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ELCOtherNot stated in judgment (application dated 19 April 2018 in suit commenced by plaint filed 22 February 2012)· [2018] KEELC 74 (KLR)

Joseph Muya Njuru v Stephen Njoroge Kunda & 4 others [2018] KEELC 74 (KLR)

Environment and Land Court
14 June 2018
2,678 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan land court re-opened a closed defence case only because the defendants paid punitive costs, showing courts demand prompt, well-grounded review applications.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Munyao Sila J, 14 June 2018) determined a notice of motion dated 19 April 2018 by the defendants seeking review, variation or setting aside of orders made on 23 January 2018, by which the court declined an adjournment and closed the defence case after hearing the plaintiff's evidence. The underlying suit concerns land parcel Naivasha/Ol Jorai II/1493, where the plaintiff claimed ownership of about 70 acres and sought eviction of the defendants and a permanent injunction, while the defendants, claiming allotment by ADC to 21 families, counterclaimed for eviction of the plaintiff from a 50-acre portion. The court set out the review requirements under Order 45 rule 1: discovery of new and important matter, error apparent on the face of the record, or sufficient reason, plus freedom from unreasonable delay. It found no new evidence or error apparent, and rejected the grounds advanced: that the applicants were unaware of the hearing date (their counsel on record attended court); that the firm of Geoffrey Otieno & Co. Advocates was compromised by the plaintiff (a grave accusation with no evidential support); and that counsel lacked instructions and documents (pleadings were on the court record). The application was also filed close to three months after the order, unreasonably late. Nevertheless, exercising its own discretion out of a desire that every party be heard on merits, the court re-opened the case conditional on the defendants jointly and/or severally paying Kshs. 50,000/= to the plaintiff within 14 days as punitive costs; failing which the orders of 23 January 2018 would remain in force. The applicants were also ordered to bear the costs of the application.

Key legal issues

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01

Whether the defendants demonstrated sufficient reason to review the orders of 23 January 2018

Holding

No sufficient reason was established; the grounds of non-information by counsel, compromised advocates and lack of instructions were all rejected

Reasoning

The court found the second firm on record knew of the hearing date since it attended court; the claim of compromise was unsupported by any evidence; the claim of lacking instructions was illogical given the firm had come on record for the defendants; and pleadings were on the court file. The court also found the application filed close to three months after the order, unreasonably delayed.

p. 3
02

Whether the application was brought without unreasonable delay

Holding

No; the application was filed close to three months after the order sought to be reviewed, with no explanation for the delay

Reasoning

The order closing the defendants' case was made on 23 January 2018, from which date the defendants must be taken to have known of it. No explanation was offered for filing on 23 April 2018, and counsel on 5 April 2018 sought only time to file submissions, not re-opening of the case.

p. 2
03

Whether the court could nonetheless re-open the case in its own discretion

Holding

Yes; purely as a discretionary indulgence, conditional on payment of punitive costs, to give the defendants a chance to be heard

Reasoning

Although unmoved by the applicants' reasons, the court has a soft spot for allowing every party to be heard on merits. Because the applicants were dilatory and took the court process for granted, the discretion was conditioned on payment of Kshs. 50,000/= within 14 days, failing which the re-opening lapses.

p. 3

Legal principles established

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  • A party seeking review under Order 45 must establish discovery of new and important matter, error apparent on the face of the record, or sufficient reason, and must file the application without unreasonable delay.
  • The court retains discretion, even absent sufficient grounds for review, to re-open a case to allow a party to be heard on merits, and may impose conditions including punitive costs for dilatory conduct.

Court orders

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  1. 1.The case is re-opened purely in the court's discretion to allow the applicants a chance to be heard, conditional on payment of Kshs. 50,000/= to the plaintiff within 14 days as a punitive award of costs
  2. 2.If the sum is not paid within 14 days, time being of essence, the discretion allowing the defendants to avail their evidence lapses and the orders of 23 January 2018 and subsequent orders remain in force
  3. 3.The applicants to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 45 Rule 2
  • Civil Procedure RulesOrder 51 Rule 1
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 45 Rules 1 and 2 and Order 51 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, "Joseph Muya Njuru v Stephen Njoroge Kunda & 4 others [2018] KEELC 74 (KLR)", Case Analysis (2018). Not stated in judgment (application dated 19 April 2018 in suit commenced by plaint filed 22 February 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/74/eng@2018-06-14

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