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ELCDismissedNot stated in judgment (application dated 29/4/2019)· [2019] KEELC 1346 (KLR)

Erick Akivaga v Alfred Eshapai Omurefu [2019] KEELC 1346 (KLR)

Environment and Land Court
9 October 2019
MNMwangi Njoroge
1,436 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale on the defendant's application dated 29/4/2019 seeking review, variation or setting aside of the judgment delivered on 30/5/2018 in favour of the plaintiff, together with joinder of three third parties allegedly involved in transactions over the suit land. The application was brought under Sections 1A, 1B, 63(e) and 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, on grounds that the defendant's counsel misrepresented facts, no hearing notice was served for 14/3/2018, no submissions were filed on his behalf, and that constructive trust and fair-trial interests required the joinder of the proposed parties. The plaintiff opposed, describing the application as an afterthought and abuse of process, noting the defendant had representation throughout, participated in the hearing, and compromised on taxed costs. The court framed the issue as whether the 30/5/2018 judgment should be reviewed, isolating unreasonable delay as the dispositive ground. Finding an 11-month delay, and noting the defendant conceded knowledge of the judgment by August 2018, the court applied Kimani v Waruingi and Abdurahman Adam Hassan and held the delay unreasonable and unexplained. Because all conditions for review must co-exist, the court declined to examine the other grounds and dismissed the application with costs. The plaintiff's judgment of 30/5/2018 remains undisturbed.

Key legal issues

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01

Whether the delay of 11 months in bringing the review application was without unreasonable delay as required by Order 45 Rule 1

Holding

The delay was unreasonable and not satisfactorily explained; the applicant knew of the judgment by August 2018, reducing the inexcusable period to at least 8 months

Reasoning

The judgment was delivered on 30/5/2018 and the application filed on 30/4/2019, a delay of 11 months. The court noted the defendant conceded awareness of the judgment by August 2018, reducing the delay to at least 8 months. Relying on Kimani v Waruingi, a delay of one year requires sufficient explanation; the applicant's explanation of his counsel's conduct did not convince the court, and even a three-month delay has been held unreasonable.

p. 2
02

Whether the other grounds for review (new matter, error apparent, fair trial rights, joinder) could sustain the application

Holding

It was unnecessary to inquire into them since the application had already failed on the delay ground

Reasoning

Since review requires all conditions to co-exist, failure on delay alone disposed of the application. The court expressly declined to determine whether there was discovery of new matter, error apparent on the face of the record, or any other sufficient reason, as the unexplained delay was dispositive.

p. 2

Legal principles established

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  • All conditions requisite for review must exist for a review order to be granted; failure of one condition is fatal to the application

Court orders

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  1. 1.The application dated 29/4/2019 is dismissed with costs
Jurisdiction invoked
Sections 1A, 1B, 63(e) and 80 of the Civil Procedure Act; Order 45 Rule 1 of the Civil Procedure Rules; Section 3 of the Environment and Land Court Act; Article 159 of the Constitution

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, "Erick Akivaga v Alfred Eshapai Omurefu [2019] KEELC 1346 (KLR)", Case Analysis (2019). Not stated in judgment (application dated 29/4/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1346/eng@2019-10-09

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