Paul Maina Kirungui & another v Mercy Muthoni Kirigi Sued as administrator of the Estate of Joram Kirigi Gachuna) & another [2019] KEELC 2752 (KLR)
The bottom line
#The High Court in Murang'a dismissed a bid to revive a dismissed land case because the applicants knew, or should have known, about the dismissal proceedings.
What this practically means
#Executive summary
#Key legal issues
#Whether the alleged missing notice to show cause constituted new and important matter discoverable with due diligence
It did not; the notice was on the public court record and had been served on the Applicants' former advocates, so the Applicants failed the due diligence test
The notice to show cause dated 2/2/18 was served on the firm of J M Kagwi and received on 22/2/18. The Applicants did not call the person who signed for it to disprove service, despite the requirement under Order 45 that discovery of new evidence be strictly proved. The information was on the public court record and both the Applicants and their advocates ought to have perused the court file before taking steps. Their claim of ignorance was a misleading afterthought, as the same issue had been raised in the earlier application of 3/4/18.
Whether laxity in prosecuting the suit, or the fact that it concerns family land, constitutes 'any other sufficient reason' for review
No; a casual attitude to litigation cannot be countenanced and the land-matter plea is untenable, as even in land matters there must be an end to litigation
The court adopted the dictum in Peter Kinyari Kihumba that even land matters must be handled with diligence and there must be an end to litigation. The failure of the former counsel to advise of the notice to show cause cannot amount to any other sufficient reason. Order 45(3)(1) enjoins the court to dismiss an application for review where no ground exists.
Non-compliance with procedural prerequisites for review and for change of advocates
The order sought to be reviewed was not exhibited, and the incoming advocate did not comply with Order 9 Rule 9 after the suit had been dismissed
Order 45 applies to a person aggrieved by a formal decree or order; none was exhibited. Further, the current advocate filed a notice of appointment after dismissal, which is a judgment, without the leave of the court or a consent with the outgoing advocate, contrary to Order 9 Rule 9 which is in mandatory terms. Whichever way the motion was viewed it was destined to fail.
Legal principles established
#- Before review is allowed on grounds of discovery of new evidence, the applicant must show due diligence, that the evidence could not have been obtained with reasonable diligence for use at the trial, that it would probably have an important influence on the result, and that it is apparently credible
- A litigant owns the case, not the advocate, and cannot blame counsel's negligence to obtain indulgence from the court
- An applicant for review must be aggrieved by the formal decree or order, and a party seeking review or appeal must first move the Court to draw up and issue the formal decree or order
- A change of advocate after judgment (a dismissal being a judgment) requires compliance with Order 9 Rule 9, which is couched in mandatory terms
Court orders
#- 1.The Notice of Motion dated 26/11/18 seeking review of the ruling of 31/10/18 is dismissed
- 2.The costs of the application shall be borne by the Applicants
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules (review of decree or order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Maina Kirungui & another v Mercy Muthoni Kirigi Sued as administrator of the Estate of Joram Kirigi Gachuna) & another [2019] KEELC 2752 (KLR)", Case Analysis (2019). Notice of Motion dated 26/11/18. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2752/eng@2019-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.