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ELCDismissed· [2018] KEELC 2694 (KLR)

Wilson Njogu Karimoni v Embu Farmers Sacco & 2 others [2018] KEELC 2694 (KLR)

High Court of Kenya
21 June 2018
YAY.M. Angima
1,155 words in judgment
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The bottom line

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The High Court refused to reinstate a dismissed lawsuit, confirming that Kenyan courts cannot use review as a shortcut around an appeal.

What this practically means

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Executive summary

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The Plaintiff moved the court by notice of motion dated 29th June 2017 under Order 45 Rules 1 and 2 of the Civil Procedure Rules seeking to set aside the order of 2nd November 2015 dismissing his suit for want of prosecution under Order 17. He argued that the suit was erroneously dismissed, that pleadings had not closed, that a preliminary objection filed by the Defendants had blocked the hearing, and that his advocate was out of the country for medical attention. In a supporting affidavit he additionally claimed the court file had been missing for most of the time. The 1st and 2nd Defendants opposed through a replying affidavit by their advocate, Mr Njeru Ithiga, who had successfully applied for dismissal of the suit after four years of inactivity. The 3rd Defendant filed nothing. The parties disposed of the application by written submissions. The court found that the Plaintiff had advanced the same grounds in opposing the dismissal application, which the court had rejected after finding an unjustifiable delay of about four years. The advocate's absence claim was contradicted by the record showing that on 2nd November 2015 Mr Njagi held brief for Mr P.N. Mugo, relied on the replying affidavit filed, and sought no adjournment. The missing court file claim was the only new matter, but it could with due diligence have been raised earlier. Holding that no ground for review was established and that review could not substitute an appeal to the Court of Appeal, the court dismissed the motion with costs to the 1st and 2nd Defendants.

Key legal issues

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01

Whether the Plaintiff established grounds for review under Order 45 of the Civil Procedure Rules

Holding

No ground for review was established - no error apparent on the face of the record, no new and important matter, and no other sufficient reason

Reasoning

The same grounds now advanced (preliminary objection blocking hearing, pleadings not closed, advocate abroad) had been raised and rejected in the dismissal application. The only new matter - the missing court file - could with due diligence have been raised earlier. The dismissal order was made on merit after consideration of the Plaintiff's replying affidavit.

p. 2
02

Whether the court can review a decision of a coordinate court to reinstate a dismissed suit

Holding

It cannot; review cannot be used as a substitute for appeal

Reasoning

The court held that allowing the review would usurp the jurisdiction of the Court of Appeal, which is the proper forum for a party aggrieved by the dismissal order of 2nd November 2015.

p. 2

Legal principles established

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  • A court cannot review its own decision or that of a coordinate court with a view to reinstating a dismissed suit; the remedy of an aggrieved party is an appeal

Court orders

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  1. 1.The Plaintiff's notice of motion dated 29th June 2017 seeking review of the order of 2nd November 2015 is dismissed
  2. 2.Costs of the application awarded to the 1st and 2nd Defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Civil Procedure RulesOrder 17
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Order 45 Rules 1 and 2 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, "Wilson Njogu Karimoni v Embu Farmers Sacco & 2 others [2018] KEELC 2694 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2694/eng@2018-06-21

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