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ELCDismissedNot stated in the extract· [2021] KEELC 3878 (KLR)

Joseph Mithamo Kariuki & another v Nelson Kinyua Muiga & 4 others [2021] KEELC 3878 (KLR)

Environment and Land Court (Kenya)
24 March 2021
2,312 words in judgment
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The bottom line

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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

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Executive summary

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The Defendants brought a notice of motion dated 7th March, 2019 under Order 12 Rule 7, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules 2010 and Sections 1A and 1B of the Civil Procedure Act, seeking review, setting aside or variation of orders made on 30th July, 2018 closing their case, reopening of the proceedings, and leave to tender their evidence. They alleged their advocates inadvertently believed the suit was fixed for directions, not hearing. The Plaintiffs opposed, contending the Defendants' advocates' non-attendance was deliberate and inexcusable and that the application was a delaying tactic in a suit pending since 2009. The court framed three issues: whether a case for review was made out, on what terms relief should be granted, and costs. Examining the record, the court found that on the hearing date the Defendants' assistant advocate actively cross-examined the Plaintiff and sought an adjournment without claiming any misunderstanding of the hearing date. The diary extract and court attendance docket exhibited were found to be likely fabricated, and the over-seven-month delay in filing the application was unexplained. Applying Shah v Mbogo and Spring Dew Properties, the court held the Defendants' conduct fell within the exception for persons deliberately seeking to obstruct or delay the course of justice, and that discretion to review must be exercised judicially upon sufficient cause, not capriciously or upon sympathy. The application was dismissed in its entirety with costs to the Plaintiffs, costs following the event under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the Defendants established sufficient cause for review or setting aside of the orders of 30th July, 2018

Holding

They did not; the alleged mistake was unsupported by credible evidence and the proceedings record contradicted the claim of misunderstanding of the hearing date

Reasoning

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.

p. 3
02

Whether the application was filed after undue delay

Holding

Yes; the 7-month delay was unexplained and amounted to undue delay

Reasoning

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.

p. 3
03

Whether the Defendants' conduct fell within the exceptions to relief from inadvertent mistake

Holding

Yes; their conduct was deliberate obstruction and delay, disentitling them from discretionary relief

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Defendants' notice of motion dated 7th March, 2019 is dismissed in its entirety
  2. 2.Plaintiffs awarded costs of the application

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 12 Rule 7
  • Civil Procedure Rules 2010Order 45 Rule 1
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 11
  • Civil Procedure Act (Cap 21)Sections 1A and 1B
  • Civil Procedure Act (Cap 21)Section 27 (proviso)

Cases cited (5)

  • Patel v. E.A Cargo Handling Services Ltd
    [1974] EA 75
  • Spring Dew Properties Limited v National Land Commission & Another
    (2018) eKLR
  • Shah v Mbogo & Another
    (1967) EA 116
  • Belinda Murai & 9 Others vs. Amos Wainaina
    [1979] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
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

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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, "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.