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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 21st September 2018)· [2019] KEELC 2751 (KLR)

Dorothy Wamuyu Muchiri v Barthlomew J.Waweru Titi [2019] KEELC 2751 (KLR)

Environment and Land Court
14 June 2019
LGL. Gacheru
2,176 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court can set aside its own ruling if a filed document was overlooked, restoring your right to have your case heard on its merits.

What this practically means

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Executive summary

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This was a Notice of Motion dated 21st September 2018 in which the Plaintiff sought stay of execution of orders made in a ruling delivered by Justice E.O. Obaga on 19th September 2018, and review of that ruling together with all orders thereof. The ruling under challenge had allowed the Defendant's application dated 3rd July 2017 as unopposed, and dismissed the Plaintiff's earlier application, on the basis that the Plaintiff had failed to file a replying affidavit within fourteen days. The Plaintiff contended that she had in fact filed her Replying Affidavit on 8th August 2018, within the fourteen days granted on 27th July 2018, and had handed the court's copy to the Court Assistant, but it never found its way into the court file before the ruling. The Defendant opposed, denying that the Plaintiff was condemned unheard and asserting his registered ownership of the suit property. The Court framed two issues: whether the application was capable of being reviewed, and whether the Applicant was entitled to the orders sought. Relying on Order 45(2) of the Civil Procedure Rules, the Court held it could hear the review since Justice Obaga was no longer attached to the court. Applying Order 45(1) and authorities including Stephen Wanyoike Kinuthia v Kariuki Marega, Muyodi v ICDC, the Supreme Court's decision in Parliamentary Service Commission v Wambora, and Chandrakhant Joshibhai Patel v R, the Court found that deciding an application as unopposed when a replying affidavit lay on record was an obvious and patent error apparent on the face of the record, warranting review. The Court allowed the application, set aside the ruling of 19th September 2018, and ordered costs in the cause.

Key legal issues

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01

Whether the ruling of 19th September 2018 was capable of being reviewed by this Court

Holding

Yes - the judge who made the order (Obaga J) was no longer attached to the court, so under Order 45(2) any judge attached to that court may hear the review; and the order was reviewable because it rested on an error apparent on the face of the record

Reasoning

The suit fell within the Thika court's jurisdiction even though the ruling had been delivered in Nairobi. Order 45(2) expressly permits any judge attached to the court to hear review where the original judge is no longer attached, so there was no improper sitting on appeal over a court of concurrent jurisdiction. The court then examined Order 45(1) grounds and found the applicant's complaint - that the judge decided an unopposed application unaware of a replying affidavit already on record - was a reviewable error, not a mere erroneous decision.

p. 1
02

Whether the Applicant was entitled to have the ruling reviewed and set aside

Holding

Yes - the replying affidavit was filed within the fourteen days allowed and was on the court record, so the ruling allowing the defendant's application as unopposed was based on incomplete information and was set aside

Reasoning

The court perused its own record and confirmed the Replying Affidavit filed on 8th August 2018, within the fourteen days from directions given on 27th July 2018. The judge delivering the ruling may not have been aware of its existence because it was handed to the Court Assistant. Treating the application as unopposed when a replying affidavit was on record was an obvious and patent mistake; each party ought to be heard and the matter determined on merit.

p. 3

Legal principles established

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  • Where a court decides an application as unopposed while a replying affidavit in fact lies on the record, that is an error apparent on the face of the record warranting review under Order 45

Court orders

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  1. 1.The Notice of Motion Application dated 21st September 2018 is allowed entirely in terms of prayers no. 2 and 3
  2. 2.The ruling delivered on 19th September 2018 is set aside
  3. 3.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 45(1)
  • Civil Procedure RulesOrder 45(2)

Cases cited (5)

  • Stephen Wanyoike Kinuthia (Suing on behalf of John Kinuthia Marega (deceased) vs Kariuki Marega & another
    [2018] eKLR
  • Muyodi vs Industrial and Commercial Development Corporation & Another
    (2006) 1 EA 243
  • Parliamentary Service Commission vs Martin Nyaga Wambora & others
    [2018] eKLR
  • Chandrakhant Joshibhai Patel vs R
    (2004) TLR, 218
  • Nyamogo & Nyamogo vs Kogo
    (2001) EA 174
On appeal from
null
null
Jurisdiction invoked
Order 45(2) of the Civil Procedure Rules - review by a judge attached to the court where the judge who made the order is no longer attached

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dorothy Wamuyu Muchiri v Barthlomew J.Waweru Titi [2019] KEELC 2751 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 21st September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2751/eng@2019-06-14

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