Thande Holdings Limited v Stephen Karanja Kungu, City Council of Nairobi & Registrar of Titles [2021] KEELC 1226 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Unreasonable delay in applying for review
An application for review filed approximately 3 years and 7 months after judgment, with no explanation in the supporting affidavit, is made with inordinate delay amounting to laches.
The judgment under review was delivered on 9 November 2017 and the application filed on 19 July 2021. The burden lay on the applicant to show the delay was reasonable or to account for it. The seven-paragraph supporting affidavit gave no reason for the delay, so the court found laches, relying on Mohsen Ali & another v Priscillah Boit & another.
Failure to plead grounds for review under Order 45 Rule 1
An applicant for review must plead and prove one of the enumerated grounds - error apparent on the face of the record, discovery of new and important evidence, or sufficient cause - failing which the application must be dismissed.
Although the application invoked Order 40 (temporary injunction) rather than Order 45, the court overlooked this under Article 159(2) and treated it as a review application. However, the applicant pleaded none of the Order 45 Rule 1 grounds, leaving the court unable to discern the foundation for review. Following Republic v Advocates Disciplinary Tribunal Ex-parte Apollo Mboya, review is available only on the enumerated grounds.
Whether review can be used to grant new reliefs not pleaded in the plaint
Review cannot be used to smuggle in fresh reliefs not pleaded or proven in the suit; such an attempt violates the doctrine of departure under Order 2 Rule 6 and amounts to seeking a second bite at the cherry.
The court noted the Amended Plaint sought declaratory and injunctive reliefs and all were granted, save that prayer (c) was inelegantly worded producing an equivocal order. The applicant's attempt to obtain specific orders against the Registrar via review would re-litigate the matter and do violence to the doctrine of departure, relying on Parliamentary Service Commission v Martin Nyaga Wambora. The court nonetheless remedied the equivocal order with a clear declaration and rectification order.
Procedural technicality - wrong provisions invoked
The court declined to strike out the application despite invocation of Order 40 (injunction) provisions instead of Order 45 (review), applying Article 159(2) of the Constitution on substantive justice.
The application was premised on Order 40 Rules 1, 3, 4 and 5, which concern temporary injunctions, and no injunctive relief was sought. The court would have been disposed to strike it out but, because the body of the application referred to review, it chose to treat it as anchored on the correct provisions (Order 45 Rule 1) in the spirit of Article 159(2) against undue regard for procedural technicalities.
Legal principles established
#- An application for review must be founded on a ground enumerated in Order 45 Rule 1, pleaded with specificity and brought without unreasonable delay; it cannot be used to introduce new reliefs not pleaded in the suit.
- A party may not raise a new ground of claim inconsistent with a previous pleading in the same suit (doctrine of departure).
Court orders
#- 1.A declaration be and is hereby made that the 1st Defendant's title over and in respect of L.R. NO. Nairobi/Block 83/14/376 is fraudulent and same be cancelled and in its place the register be rectified so as to reflect the name of the Plaintiff as the rightful owner
- 2.The Notice of Motion Application dated the 19th of July 2021 is devoid of merits and same is hereby Dismissed
- 3.No orders as to costs
- Jurisdiction invoked
- Order 45 Rule 1 and Order 2 Rule 6 of the Civil Procedure Rules, 2010; Section 3A of the Civil Procedure Act (Cap. 21); Article 159(2) of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thande Holdings Limited v Stephen Karanja Kungu, City Council of Nairobi & Registrar of Titles [2021] KEELC 1226 (KLR)", Case Analysis (2021). ELC No. 211 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1226/eng@2021-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.