Mohamed Salim Fazal v Horus Limited & 6 others [2020] KEELC 2682 (KLR)
The bottom line
#A Kenyan land court refused to reopen a judgment, confirming that litigants cannot blame their advocates for their own failure to follow their case.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant's unawareness of the hearing date and its former advocates' failure to file evidence constitute new and important matter or sufficient reason for review
No - the material did not qualify as new and important evidence, and the applicant was aware of the suit and was indolent
The court held that for material to qualify as new and important evidence it must be such as could not have been discovered with due diligence. The 1st Defendant entered appearance in 2014 and filed its defence in 2016, so it knew of the suit, yet showed no correspondence with its former advocates and took some nine months after judgment to apply. Its conduct amounted to a second bite at the cherry.
Whether indolence and blame-shifting to former advocates justify review
No - a litigant bears the duty to pursue its case and cannot found a review on an advocate's failure
Relying on Kimaru J in Savings & Loans Ltd v Susan Wanjiru Muritu, the court held that a case belongs to the litigant, who must constantly check the progress of the case with counsel. The record showed the 1st Defendant repeatedly sought adjournments and its case had been closed on 15th November 2016; a prior review application had already been dismissed on 15th November 2017.
Legal principles established
#- A case belongs to a litigant and not to their advocate; a litigant must diligently follow up the progress of their case and cannot rely solely on an advocate's mistake
- An 'any other sufficient reason' ground for review under Order 45 Rule 1(1) must be analogous to the specified grounds of new and important matter or error apparent on the face of the record
- Review cannot be a vehicle for a fresh hearing or correction of an erroneous view; it lies only for correction of a patent error of law or fact
Court orders
#- 1.The application dated 29th March 2019 is dismissed with costs to the Plaintiff/Respondent
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Salim Fazal v Horus Limited & 6 others [2020] KEELC 2682 (KLR)", Case Analysis (2020). Notice of Motion dated 29th March 2019 (suit instituted 4th December 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2682/eng@2020-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.