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ELCDismissed· [2020] KEELC 1062 (KLR)

Kisekem Limited v Michael Kipkering Cherwon & 3 others [2020] KEELC 1062 (KLR)

Environment and Land Court
14 October 2020
SKS. M. Kibunja
934 words in judgment
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The bottom line

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Kenya's Environment and Land Court at Eldoret refused to relax a stay condition because the defendant delayed unexplained and its evidence was contradicted.

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 Eldoret (S. M. Kibunja, Judge) delivered virtually on 14th October, 2020 on the 1st Defendant's Notice of Motion dated 26th February, 2020. The 1st Defendant sought review and/or setting aside of a condition imposed in the Court's ruling of 20th November, 2019 on his earlier Motion dated 6th August, 2019, namely that he deposit all rent collected from the suit properties since August, 2019 in a joint interest-earning bank account within 60 days. The 1st Defendant relied on a valuation report by Highland Valuers dated 3rd February, 2020 contending there were no structures on the suit land capable of earning rental income, only a concrete slab, and that the compliance period had lapsed. The Plaintiff, through a replying affidavit of Willy Rotich Kamuren, opposed the application as an abuse of process, relying on the valuer's earlier report showing tenants, nine photographs of fully occupied stalls, and the 1st Defendant's unrebutted earlier deposition that the property was occupied by hawkers paying rent. The Court framed two issues: whether the requirements of Order 45 Rules 1 and 2 of the Civil Procedure Rules for review were satisfied, and who should bear costs. It found the 60-day compliance period had long lapsed when the Motion was filed, with no explanation for the delay, and that the unrebutted affidavit evidence and unchallenged photographs contradicted the 1st Defendant's claim of no rental income. The Court concluded the review requirements were not satisfied and dismissed the Motion with costs to the Plaintiff.

Key legal issues

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Whether the requirements for review under Order 45 Rules 1 and 2 of the Civil Procedure Rules were satisfied

Holding

The application for review failed; the requirements were not satisfied because the 60-day period for complying with the condition had long lapsed with no explanation for the delay, and the 1st Defendant's claim that there were no rental-generating structures was contradicted by unrebutted evidence of occupied stalls and rental payment.

Reasoning

The order sought to be reviewed imposed a condition of depositing rental income with a bank within 60 days. By the time the Motion was filed the period had long lapsed, and the 1st Defendant acknowledged this but gave no explanation for the delay in seeking review. Further, the Plaintiff's earlier unrebutted deposition and nine unchallenged photographs showed occupied stalls and activities on the property, undermining the valuation report of 3rd February, 2020 relied upon by the 1st Defendant. Accordingly the Motion was dismissed with costs.

p. 2

Legal principles established

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  • An applicant for review of an order must satisfy the requirements of Order 45 Rules 1 and 2 of the Civil Procedure Rules, and unexplained delay in moving the court after the compliance period has lapsed is fatal to the application.
  • Unrebutted affidavit evidence and unchallenged photographs may effectively displace a party's factual claim, such as the assertion that no structures on land are capable of earning rental income.

Court orders

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  1. 1.The 1st Defendant's Notice of Motion dated 26th February, 2020 is dismissed with costs
  2. 2.The 1st Defendant to pay the Plaintiff's costs of the notice of motion
  3. 3.The Ruling to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1 and 2
Jurisdiction invoked
Inherent powers of the Environment and Land Court and 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, "Kisekem Limited v Michael Kipkering Cherwon & 3 others [2020] KEELC 1062 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1062/eng@2020-10-14

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