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ELCDismissedMachakos CMCC No. 349 of 2013 (Appeal)· [2020] KEELC 3747 (KLR)

Monicah Mwelu Gideon v James Kivuva Ndetei (legal representative of the Estate of Kanuu Ndetei (deceased) [2020] KEELC 3747 (KLR)

High Court of Kenya
31 January 2020
OAO. A. Angote
1,077 words in judgment
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The bottom line

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The High Court dismissed an 85-year-old widow's bid to stay her eviction, ruling that her advocate's mistake was not 'sufficient reason' for review.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 26th April 2019 in which the Appellant sought a stay of execution of the judgment and decree in Machakos CMCC No. 349 of 2013 and a review of the court's Ruling of 29th March 2019, which had dismissed her earlier application for stay of execution and of her eviction from land known as Konza South Block 2/171 pending appeal. The Appellant, an 85-year-old widow, argued that her former advocates let her down by failing to annex the lower court's judgment to the earlier application, that the decree had never been executed, and that she would suffer substantial loss by being rendered homeless. The Respondent countered that a similar stay application had already been determined, that the decree had long been executed, and that the suit property belonged to a deceased person's estate already distributed to beneficiaries. Applying Section 80 of the Civil Procedure Act and Order 45(1) of the Civil Procedure Rules, the court held that an advocate's failure to annex a judgment, or general negligence in prosecuting a matter, cannot amount to 'sufficient reason' for review. Review cannot be used to fill the gaps identified in a prior ruling, nor can the court revisit the issue of occupation already determined, as it would be sitting on its own appeal. The application was dismissed with costs.

Key legal issues

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01

Whether failure by counsel to annex the lower court Judgment constitutes sufficient reason for review

Holding

It does not; the lapse cannot be corrected through review.

Reasoning

The court held that litigants and advocates are presumed to know substantive and procedural law. Where an application fails due to a fundamental lapse by the litigant, review is not the remedy. Having failed to annex the Judgment in the initial application, the Appellant could not review the Ruling merely because she had now annexed it.

p. 2
02

Whether the court could reconsider the Appellant's claim of continued occupation of the suit land

Holding

It could not; the issue was already considered and determined in the Ruling of 29th March 2019.

Reasoning

The plea that the Appellant was still in occupation had been considered in the earlier Ruling. Revisiting it would amount to the court sitting on its own appeal, which the doctrine of review does not permit.

p. 2

Legal principles established

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  • An advocate's negligence or incompetence in prosecuting a matter cannot constitute 'sufficient reason' for review under Order 45(1)
  • Review cannot be used to cure a fundamental lapse on the part of a litigant or to fill gaps identified in a prior ruling
  • A court cannot revisit an issue it has already determined, as that would amount to sitting on appeal over its own decision

Court orders

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  1. 1.The Application dated 26th April 2019 is dismissed
  2. 2.Costs of the Application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45(1)
On appeal from
Magistrate's Court (Machakos)
CMCC No. 349 of 2013
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review)

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, "Monicah Mwelu Gideon v James Kivuva Ndetei (legal representative of the Estate of Kanuu Ndetei (deceased) [2020] KEELC 3747 (KLR)", Case Analysis (2020). Machakos CMCC No. 349 of 2013 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3747/eng@2020-01-31

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