James Ndonyu Njogu v Muriuki Macharia [2021] KEELC 3074 (KLR)
The bottom line
#The Environment and Land Court in Nyeri dismissed a landowner's bid to revive his case, ruling that blaming Covid-19 and late-discovered documents cannot excuse years of inaction.
What this practically means
#Executive summary
#Key legal issues
#Whether discovery of allegedly missing parcel file records and forged documents qualified as new and important matter for review
No - the Appellant failed to demonstrate due diligence in obtaining the evidence from public authorities, and in any event such evidence had no bearing on a suit dismissed for want of prosecution
The Appellant filed suit in 2004 but showed no evidence of diligently seeking the parcel file records or investigating the alleged forgeries before the appeal was decided. Moreover, the suit was dismissed for want of prosecution, not for lack of evidence, so evidence touching the merits of the transfer could not revive it. Only a satisfactory explanation for delay in prosecuting the suit could have saved it.
Whether the application for review was filed without unreasonable delay
No - after the initial 2019 review application was struck out, the Appellant slept for about a year; the Covid-19 pandemic was not a credible excuse since urgent applications were still being filed and handled online
Order 45 requires an application for review without unreasonable delay. The Appellant filed in December 2019, that attempt failed on technicalities, and no steps were taken in 2020 until February 2021. The court noted that although the Judiciary scaled down operations from March 2020, urgent applications could still be filed and prosecuted through online platforms, and numerous applications were determined in that period.
Whether the ancillary prayers (stay of execution, setting aside certificate of costs, inhibition) could stand independently
No - they were dependent on the success of the review prayer, which failed
The court framed the ancillary prayers as consequential to the review. Since the review failed, there was no legal foundation for granting stay of execution, setting aside the taxed certificate of costs, or inhibiting dealings with the suit property. All such issues were answered in the negative.
Who should bear costs of the application
The Respondent, as the successful party, in accordance with the proviso to Section 27 of the Civil Procedure Act
Costs are discretionary but follow the event unless the court for good reason directs otherwise, per Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd. The court found no good reason to depart from the general rule and awarded the Respondent the costs of the application.
Legal principles established
#- An applicant for review under Order 45 must show discovery of new and important matter or evidence not obtainable despite due diligence, or an error apparent on the face of the record, or other sufficient reason, and must apply without unreasonable delay
- New evidence concerning the merits of a suit dismissed for want of prosecution is irrelevant to an application for review of the dismissal; only a reasonable explanation for delay could have saved such a suit
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court for good reason directs otherwise
Court orders
#- 1.The Appellant's notice of motion dated 26th January, 2021 be and is hereby dismissed in its entirety
- 2.The Respondent is hereby awarded costs of the application to be borne by the Appellant
- On appeal from
- Senior Resident Magistrate's Court, Karatina
- CC No. 109 of 2004
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act (Cap. 21), Order 45 rule 1 and Order 51 rule 1 of the Civil Procedure Rules, Article 159(2)(d) & (e) of the Constitution of Kenya and Section 68(1) of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Ndonyu Njogu v Muriuki Macharia [2021] KEELC 3074 (KLR)", Case Analysis (2021). Karatina SRM CC No. 109 of 2004 (Appellant's notice of motion dated 26th January, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3074/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.