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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 1693 (KLR)

Johanna Mbogo & another v Joseph Kimani & 2 others [2018] KEELC 1693 (KLR)

Environment and Land Court
20 September 2018
EOE. O. Obaga
945 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed landowners' attempt to undo an execution order, warning that litigation must end.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (E. O. Obaga, J) determined a Notice of Motion dated 2nd March 2018 by the defendants seeking review and setting aside of orders made on 30th January 2018. The underlying orders had allowed, as an unopposed application, the plaintiffs' motion dated 14th February 2017 seeking execution of a judgment delivered on 13th March 2002, police assistance for the bailiff during eviction, and directions to the Nairobi County Government surveyor to point out beacons of the suit property. The defendants argued their advocates were unaware of the hearing date and that a replying affidavit sworn by Joseph Mwangi on 21st November 2016 existed. The plaintiffs opposed, contending the defendants were served, ignored directions, and had not met the Order 45 threshold. The court traced the history of directions: on 29th March 2017 the defendants' counsel was given 14 days to respond; on 25th April 2017 parties were directed to file submissions; on 20th November 2017 counsel undertook to file submissions by that Friday. Neither the replying affidavit nor submissions were filed before the ruling. The defendants' own affidavit conceded no replying affidavit was filed, and the annexed affidavit related to an unrelated notice to show cause dated 3rd October 2016. Holding the review application an abuse of process and reiterating that litigation must end, the court dismissed the application with costs to the plaintiffs and discharged the interim orders.

Key legal issues

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01

Whether the defendants met the threshold for review under Order 45 of the Civil Procedure Rules

Holding

The application for review failed because the defendants were aware of the hearing dates, undertook to file submissions, never filed a replying affidavit, and attempted to mislead the court with an affidavit from an unrelated matter

Reasoning

The court traced the history of the 14th February 2017 application: directions were given on 29th March 2017 giving defendants 14 days to respond, submissions were ordered on 25th April 2017, and on 20th November 2017 counsel undertook to file submissions. Neither the replying affidavit nor submissions were filed before the ruling of 30th January 2018. The defendants' claim of ignorance of the hearing date was contradicted by their own filing of submissions on 12th February 2018 and their affidavit conceding no replying affidavit was filed. The annexed affidavit of 21st November 2016 related to a notice to show cause, not the application under ruling. The application was an abuse of process.

p. 2

Legal principles established

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  • Litigation must come to an end; parties cannot repeatedly misuse court process to stall execution of a judgment

Court orders

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  1. 1.Dismissal of the defendants' Notice of Motion dated 2nd March 2018
  2. 2.Costs of the application awarded to the Plaintiffs/Respondents
  3. 3.Discharge of the interim orders that had been granted

Authorities

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Legislation

  • Civil Procedure RulesOrder 45
Jurisdiction invoked
Order 45 of the Civil Procedure Rules (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, "Johanna Mbogo & another v Joseph Kimani & 2 others [2018] KEELC 1693 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1693/eng@2018-09-20

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