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ELCDismissedMiscellaneous Application dated 27th October, 2021· [2021] KEELC 196 (KLR)

Alban Njoka Kamundi v George Munene Mbare & another [2021] KEELC 196 (KLR)

High Court of Kenya at Chuka
16 December 2021
CYC. K. Yano
2,368 words in judgment
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The bottom line

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The High Court dismissed a bid to reopen a closed defence case, confirming that complaints about adjournment decisions must go on appeal, not revision.

What this practically means

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Executive summary

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The applicant, the defendant in Chuka CMC ELC Case No. 51 of 2019 (George Munene Mbare & Ano. v Alban Njoka Kamundi), applied by notice of motion dated 27th October 2021 for stay of further proceedings and delivery of judgment, and for revision of an order made on 8th October 2021 by the subordinate court closing the defence case and directing filing of written submissions, so that he could tender his defence. He attributed his non-attendance at defence hearings on 22nd September, 29th September and 6th October 2021 to illness (high blood pressure and diabetes) supported by medical documents, arguing that closure of his defence violated natural justice and the Constitution. The respondents opposed, contending the applicant was a vexatious litigant who had repeatedly changed advocates and deliberately dodged hearings; they questioned the veracity of the medical documents. The respondents' case concerned alleged illegal structures blocking an access road. Written and oral submissions were made, the applicant relying on CMC Holdings Ltd v James Mumo Nzioka and section 3A of the Civil Procedure Act. C. K. Yano, J held that the challenge was to a judicial decision on adjournment, an exercise of discretion which, absent illegality, irrationality or unreasonableness, could not be revised; the proper remedies were appeal or review, which had not been pursued. The application was found incompetent and dismissed with costs to the respondents, allowing the lower court to proceed to judgment.

Key legal issues

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01

Whether revision is a competent remedy against an order closing the defence case

Holding

The application was incompetent; the proper remedies against the subordinate court's decision were appeal or review, not a miscellaneous application for revision.

Reasoning

The court held that the impugned order was a judicial decision, and any aggrieved party may appeal or seek review. Whether or not to grant an adjournment is an exercise of judicial discretion; unless shown to be illegal, irrational or unreasonable, it cannot be the subject of a revisionary application. Only an appellate tribunal in a first appeal may re-evaluate evidence and arrive at its own decision on facts.

p. 3

Legal principles established

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  • The exercise of judicial discretion by a court, unless shown to be illegal, irrational or unreasonable, cannot be challenged by way of revision; the remedy is appeal.

Court orders

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  1. 1.The notice of motion dated 27th October, 2021 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A

Cases cited (1)

  • CMC Holdings Ltd vs James Mumo Nzioka
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power of the court), invoked by the applicant

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, "Alban Njoka Kamundi v George Munene Mbare & another [2021] KEELC 196 (KLR)", Case Analysis (2021). Miscellaneous Application dated 27th October, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/196/eng@2021-12-16

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