Joseph Mithamo Kariuki & another v Nelson Kinyua Muiga & 4 others [2021] KEELC 3878 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to reopen a case closed in 2018, ruling that deliberate delay and unexplained tardiness disqualify parties from leniency.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendants established sufficient cause for review or setting aside of the orders of 30th July, 2018
They did not; the alleged mistake was unsupported by credible evidence and the proceedings record contradicted the claim of misunderstanding of the hearing date
The record showed the Defendants' advocate's assistant actively cross-examined the Plaintiff and sought an adjournment without claiming any misunderstanding of the hearing date. Documents exhibited to support the mistake theory appeared fabricated, especially given the 7-month delay in filing the application. No new circumstances justified review of the refusal of adjournment.
Whether the application was filed after undue delay
Yes; the 7-month delay was unexplained and amounted to undue delay
The impugned orders were made on 30th July, 2018 and the application filed on 7th March, 2019, over 7 months later, with no explanation. Applying the principles in Spring Dew Properties, in the absence of any explanation, however feeble, the court was entitled to find undue delay.
Whether the Defendants' conduct fell within the exceptions to relief from inadvertent mistake
Yes; their conduct was deliberate obstruction and delay, disentitling them from discretionary relief
The court found the Defendants had repeatedly failed to comply with Order 11 directions, sought transfer and adjournment on the hearing date as delaying tactics, and filed the application to delay delivery of judgment, squarely placing them within the Shah v Mbogo exceptions.
Legal principles established
#- The court's discretion to review or vary its orders must be exercised judicially and upon sufficient cause, not capriciously, arbitrarily or upon sympathy
- Discretion to set aside ex parte proceedings is not designed to assist a party who has deliberately sought to obstruct or delay the course of justice
- Costs follow the event under Section 27 of the Civil Procedure Act unless the court for good reason directs otherwise
Court orders
#- 1.The Defendants' notice of motion dated 7th March, 2019 is dismissed in its entirety
- 2.Plaintiffs awarded costs of the application
- Jurisdiction invoked
- Inherent powers of the court and Sections 1A and 1B of the Civil Procedure Act (Cap 21) with Order 12 Rule 7, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mithamo Kariuki & another v Nelson Kinyua Muiga & 4 others [2021] KEELC 3878 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3878/eng@2021-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.