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ELCAllowedNot stated in the judgment· [2019] KEELC 2744 (KLR)

Elijah Chepkwony Chirchir v Joel Kipngeno Rop [2019] KEELC 2744 (KLR)

Environment and Land Court (Kericho) — single-judge first-instance court
1 July 2019
2,020 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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The Kericho Environment and Land Court reinstated a land suit struck out over a defective grant, blaming a registry error, but made the plaintiff pay costs.

What this practically means

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Executive summary

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This is a ruling on a review application under section 80 of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules. On 14th March 2019 the court had struck out the plaintiff's suit on a preliminary objection because the Limited Grant used to file suit — issued in Kericho HC Ad Litem No. 6 of 2017 — was restricted to 'securing and preserving the assets of the deceased' rather than filing suit. The plaintiff sought review, contending that registry staff had erroneously described the grant's purpose, whereas he had applied for a grant ad litem for filing suit. The defendant opposed, arguing the threshold for review was unmet, that the plaintiff's remedy was appeal or a fresh suit, and that the order sought to be reviewed had not been annexed. The court framed a single issue: whether the plaintiff was entitled to review. It perused the ad litem file, confirmed the plaintiff had applied for a grant for filing suit, and reluctantly accepted that a registry mistake explained the defective grant. It acknowledged the settled position that the order sought to be reviewed must be annexed, calling the omission a statutory requirement rather than a technicality, but held that locking out the applicant would not serve the interests of justice in circumstances traceable to the registry's error, guided by the oxygen principles and the Chemwolo dictum on blunders. The court granted the application, set aside the striking-out order, reinstated the suit, ordered the plaintiff to pay thrown away costs of Kshs. 30,000, and awarded the defendant the costs of the application.

Key legal issues

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01

Whether an error attributable to High Court Registry staff in a Limited Grant constitutes sufficient cause for review under section 80 of the Civil Procedure Act and Order 45

Holding

Yes; the court accepted the Plaintiff's explanation that the grant erroneously described its purpose due to a registry mistake, and exercised its discretion to review.

Reasoning

The court perused the file for HC Ad Litem No. 6 of 2017 and confirmed the applicant had applied for a grant for filing suit, yet the issued grant described it as for securing and protecting assets. Since the error was traceable to the registry rather than the applicant, the court accepted the explanation and, guided by the overriding objective and the Chemwolo dictum, found sufficient cause to review.

p. 2
02

Whether failure to annex the order sought to be reviewed defeats an application for review

Holding

It is a statutory requirement and not a mere technicality, but in the peculiar circumstances of this case the court did not lock out the applicant.

Reasoning

The court adopted the Kitonga, Ondieki and Githinji authorities that the order must be annexed, and expressly rebuked counsel for blaming the court. However, because the chain of events traced back to the registry's mistake and the oxygen principles favour determination on the merits, the court excused the omission in the interests of justice.

p. 2
03

Whether an erroneous conclusion of law is a ground for review rather than appeal

Holding

The defendant argued, citing National Bank of Kenya v Ndungu Njau, that error of law is for appeal not review; the court did not rest on that ground but on the registry mistake.

Reasoning

The defendant's authorities stressed that locus standi goes to the root of a suit and that an erroneous conclusion of law warrants appeal, not review. The court distinguished these by finding the error was not a legal error in the ruling itself but a clerical mistake in the grant supplied by the registry, bringing the case within sufficient cause for review.

p. 2

Legal principles established

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  • The conditions for review are discovery of a new and important matter, an error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay.
  • A party seeking review must annex a copy of the order sought to be reviewed; this is a statutory requirement under section 80 of the Civil Procedure Act and not a curable technicality.
  • Mistakes by counsel or registry staff should not ordinarily bar a party from having their case heard on the merits, provided there is no fraud or intention to overreach.

Court orders

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  1. 1.The order striking out the Plaintiff's suit dated 14th March 2019 is set aside
  2. 2.The suit is reinstated
  3. 3.The Plaintiff shall pay the Defendant's thrown away costs of Kshs. 30,000
  4. 4.The Defendant shall have the costs of the application

Authorities

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Legislation

  • Law of Succession Actsection 54
  • Law of Succession Act, 5th Schedulerule 14
  • Civil Procedure Actsection 80
  • Civil Procedure ActSections 1A and 1B (oxygen principles / overriding objective)
  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Monica Kimani Munyi (suing as personal representative of Albert Munyi Kabarathi) v Annette Wanjira Nthiga & 2 Others
    [2018] eKLR
  • National Bank of Kenya Limited v Ndungu Njau
    Civil Appeal No 211 of 1996
  • M’Rithara M’ Ikiome (Deceased) v H. Young Company Ltd & Another
    [2016] eKLR
  • Titus Mulandi Kitonga v B.O (A minor suing through his mother and next friend SnO)
    [2016] eKLR
  • Thomas Owen Ondieki v National Bank of Kenya Ltd
    [2011] eKLR
  • Bernard Githinji v Kirate Farmers Co-operative Ltd
    HCCC No. 32 of 1974 (UR)
  • Philip Keipto Chemwolo & Another v Augustine Kibende
    [1986] eKLR
Jurisdiction invoked
Discretion to grant review under section 80 of the Civil Procedure Act and Order 45 Rules 1, 2 and 3 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, "Elijah Chepkwony Chirchir v Joel Kipngeno Rop [2019] KEELC 2744 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2744/eng@2019-07-01

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