John Ndirangu Kamau v Alphonce Kamau Kimani [2020] KEELC 1461 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the grounds advanced constituted grounds for review under section 80 of the Civil Procedure Act and Order 45
They did not; the ground relied on was not new matter and no sufficient reason was shown
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.
Whether the application dated 22nd February 2018 was dismissed without a fair hearing
It was not; the defendant was afforded an opportunity to argue the application and failed to utilise it
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.
Whether review is discretionary and how that discretion must be exercised
Review is a discretionary remedy to be exercised judiciously, not capriciously
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.
Legal principles established
#- 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
#- 1.Defendant's Notice of Motion dated 18th July 2019 dismissed with costs to the plaintiff
- 2.Orders granted on 25th February 2020 in the defendant's application dated 17th February 2020 discharged
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.