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ELCDismissedNairobi ELC Civil Suit (orig. decree of 3rd July 2007; applications dated 18th July 2019 and 17th February 2020)· [2020] KEELC 1461 (KLR)

John Ndirangu Kamau v Alphonce Kamau Kimani [2020] KEELC 1461 (KLR)

Environment and Land Court
30 July 2020
2,825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a dismissed application because the advocate's absence in another court was not new evidence or sufficient reason for review.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (S. Okong'o, J) determined two applications by the defendant in a suit in which judgment had been entered for the plaintiff on 3rd July 2007 for Kshs. 700,000 with costs and interest. In execution, prohibitory orders had attached two parcels of land, and on 4th October 2017 the Deputy Registrar ordered their sale by public auction. The defendant's application of 22nd February 2018 seeking stay of that order was dismissed on 26th June 2019 after the court declined an adjournment and defendant's counsel indicated she was unable to proceed. The defendant then sought reinstatement of that dismissed application by Notice of Motion dated 18th July 2019, contending that Dr. Khaminwa had been engaged in the Court of Appeal and that a mistake of counsel should not be visited on a client. The plaintiff opposed, arguing the court was functus officio and the issues res judicata, and that the 2007 decree remained unsatisfied. The court framed the issue as whether the orders of 26th June 2019 should be set aside for a fresh hearing, treating the application as one for review under section 80 of the Civil Procedure Act and Order 45. Applying Francis Origo, Kenya Power v Benzene Holdings, John Kamau Ruhangi and Patriotic Guards, the court held that Dr. Khaminwa's court attendance was not new matter and was not a sufficient reason for review, and that the dismissal was not unfair as the defendant had failed to utilise the opportunity to be heard. The application dated 18th July 2019 was dismissed with costs to the plaintiff, and the interim injunction orders granted on 25th February 2020 in the application dated 17th February 2020 were discharged as having been overtaken by events.

Key legal issues

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01

Whether the grounds advanced constituted grounds for review under section 80 of the Civil Procedure Act and Order 45

Holding

They did not; the ground relied on was not new matter and no sufficient reason was shown

Reasoning

The court set out the three Order 45 grounds: new and important matter, error apparent on the face of the record, or other sufficient reason. The only ground advanced - that Dr. Khaminwa was in the Court of Appeal on the hearing date - was the very ground on which adjournment had been sought and refused, hence not newly discovered. The hearing date had been taken in Dr. Khaminwa's presence, and he was expected to instruct another advocate if unavailable. The application raised no error apparent on the record, and the long-unsatisfied 2007 decree weighed against finding weighty issues.

p. 3
02

Whether the application dated 22nd February 2018 was dismissed without a fair hearing

Holding

It was not; the defendant was afforded an opportunity to argue the application and failed to utilise it

Reasoning

On 26th June 2019 the adjournment sought was considered and dismissed; counsel then stated she was unable to proceed. The court was left with no alternative but to dismiss the application. Having been given the chance to be heard, the defendant could not later complain of unfairness. Nor did the application raise weighty issues: the Deputy Registrar's sale order was made in the presence of both advocates without objection, and the 2007 decree remained unsatisfied and unappealed after more than 13 years.

p. 3
03

Whether review is discretionary and how that discretion must be exercised

Holding

Review is a discretionary remedy to be exercised judiciously, not capriciously

Reasoning

Relying on Patriotic Guards Ltd v James Kipchirchir Sambu, the court held that judicial discretion must be exercised on legal principles and according to the circumstances of each case, with the paramount need to do real and substantial justice. Applied here, the defendant failed to show entitlement to the exercise of that discretion: no new matter, no error apparent, and no sufficient reason was demonstrated, and the plaintiff stood to suffer injustice from continued delay of a 13-year-old unsatisfied decree.

p. 3

Legal principles established

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  • An advocate's attendance in another court, without more, is not a sufficient reason to adjourn a case or to warrant review of orders dismissing an application
  • Review jurisdiction is confined to the grounds in Order 45 and a party given an opportunity to be heard who fails to utilise it cannot claim the dismissal was unfair

Court orders

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  1. 1.Defendant's Notice of Motion dated 18th July 2019 dismissed with costs to the plaintiff
  2. 2.Orders granted on 25th February 2020 in the defendant's application dated 17th February 2020 discharged

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 44 Rule 1 (as referenced in John Kamau Ruhangi)
  • Civil Procedure RulesOrder 49

Cases cited (5)

  • Francis Origo & another v Jacob Kumali Mungala
    Eldoret CA No. 149 of 2001, [2005]eKLR
  • Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/a Wyco Paints
    Nairobi CA 132 of 2014, [2016]eKLR
  • John Kamau Ruhangi v Kenya Reinsurance Corporation
    Civil Appeal No. 208 of 2006, [2012]eKLR
  • Patriotic Guards Ltd. v James Kipchirchir Sambu
    [2018] eKLR
  • Rodgers Senaji Mulemi v Zefania Ngaira Angwenye
    Civil Appeal No. 170 of 2016
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)

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, "John Ndirangu Kamau v Alphonce Kamau Kimani [2020] KEELC 1461 (KLR)", Case Analysis (2020). Nairobi ELC Civil Suit (orig. decree of 3rd July 2007; applications dated 18th July 2019 and 17th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1461/eng@2020-07-30

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