Dismas Egesa Osinya v County Government of Busia [2020] KEELC 1559 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside its own judgment, letting Busia County present compensation evidence in a land dispute it had lost.
What this practically means
#Executive summary
#Key legal issues
#Due diligence in obtaining new and important evidence for review
The new evidence would have been obtained had due diligence been applied, since the Land Registrar's letter was already in the defendant's list of documents
The court noted the applicant was represented by advocates throughout and documents sourced from archives would ordinarily have been given to previous advocates by the instructing client. The Land Registrar's letter dated 5/8/2016 was included in the defendant's list of documents filed on 16th July 2017, showing the material was within reach. However, the court did not dismiss the application on this ground alone.
Whether review lies 'for any sufficient reason' notwithstanding failure of the due-diligence ground
The court has discretion to consider the application on all three headings and dealt with it under 'any sufficient reason/cause'
Relying on Wangechi Kimata v Charan Sing, the court held that 'any other sufficient reason' need not be analogous with the other grounds. The applicant had annexed documents showing the suit property traced to Bukhayo/Mundika/1295 which was compulsorily acquired and compensated for, extinguishing the plaintiff's rights - material not available when judgment was rendered on 5th December 2018.
Whether the eleven-month delay was inordinate and excusable
The delay was inordinate but excusable, being caused by setting up the operational structures of the office of the County Attorney
The court accepted that eleven months is inordinate but found the explanation reasonable: setting up a new office involves recruitment processes. Citing Essanyi v Solanki, lapses should not necessarily debar a litigant; the plaintiff could be compensated for prejudice by an award of costs.
Whether pendency of an appeal barred the application for review
Section 59(1) of the Appellate Jurisdiction Act is inapplicable to the ELC, and it is sufficient that evidence of withdrawal of the notice of appeal was filed
The court held the Appellate Jurisdiction Act does not apply to the ELC. Whether the appeal was formally marked as withdrawn is a matter for the Court of Appeal; for this court, evidence of the withdrawal letter sufficed.
Whether the application was incompetent for non-compliance with Order 9 and being filed by a stranger
The defect was cured by a consent filed on 15th June 2020 and, in any event, is curable under Article 159(2)(d) of the Constitution
Order 9 protects advocates' fees, not a sword for opposing counsel. The County Attorney is an employee of the applicant; the application was deemed filed by the applicant in person. Striking out would only lead to a fresh application and delay; substantive justice requires the matter be concluded once and finally.
Whether the defence should be allowed to prove compulsory acquisition and payment of compensation
The defence should be given an opportunity to provide evidence of compulsory acquisition and payment, and whether the applicant is non-suited
The judgment sought to be set aside found the government acquired the plaintiff's land without compensating him. The annexed gazette notices and compensation correspondence were not available at trial. Absence of cheques or payment vouchers is a matter to be argued after the case is reopened.
Legal principles established
#- 'Any other sufficient reason' for review need not be analogous with the other grounds in Order 45, as such a restriction would clog the unfettered right given by section 80 of the Civil Procedure Act
- The purpose of Order 9 is to protect advocates' fees, not to be used as a barrier by opposing counsel to challenge proceedings
- Procedural defects such as filing by a stranger to proceedings are curable under Article 159(2)(d) of the Constitution
Court orders
#- 1.The application is allowed in terms of prayer 2 of the motion
- 2.The judgment rendered on 5th December 2018 is reviewed by setting it aside to enable the defence present its case by introducing the documents annexed to the affidavits filed in support of the motion
- 3.The plaintiff is granted leave to recall their witness should they deem it fit to do so
- 4.Costs of the application awarded to the plaintiff and assessed at Kshs.25,000, payable within 45 days of delivery of the ruling, in default the respondent is at liberty to execute
- Jurisdiction invoked
- Sections 3, 3A and 80 of the Civil Procedure Act; Order 10 rule 11 and Order 45 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dismas Egesa Osinya v County Government of Busia [2020] KEELC 1559 (KLR)", Case Analysis (2020). Busia ELC Case (notice of motion dated 14th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1559/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.