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ELCDismissed· [2021] KEELC 4087 (KLR)

Musa Kimathi v Joshua Mbaya & another [2021] KEELC 4087 (KLR)

Environment and Land Court
10 March 2021
1,529 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court at Nyeri refused to reopen a concluded land case, confirming that once a file is properly closed, only a Kenyan appeal court can revive your grievance.

What this practically means

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Executive summary

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This ruling by Y. M. Angima, Judge, of the Environment and Land Court at Nyeri disposes of a notice of motion dated 10th December, 2019 by which the Defendants sought setting aside of an order made on 21st November, 2019 closing the court file, and reinstatement of the suit so that they could prosecute an earlier, dormant application for review of a judgment and decree dated 14th May, 2009 which had entered judgment for the Plaintiff, ordered their eviction from parcel No. 1036 Mwichiri Farmers Company, restrained them by permanent injunction, and dismissed their counterclaim with costs. Their review application of 17th March, 2010 had been struck out on 29th June, 2010 as improperly on record, and their notice of appeal dated 21st May, 2009 was never pursued. The court framed three issues: whether a case was made out to set aside the closure order; whether any suit or application remained pending for reinstatement; and costs. On the first, the court held the closure order was properly made since nothing was pending, and no material change of circumstances was shown. On the second, the court held the suit was concluded by the 2009 judgment and the review application was no longer in existence; the notice of appeal could only be pursued in the Court of Appeal. On costs, applying Section 27(1) of the Civil Procedure Act but departing from the costs-follow-the-event rule because the Plaintiff did not respond, the court dismissed the motion with no order as to costs.

Key legal issues

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01

Whether the order closing the court file on 21st November, 2019 should be set aside

Holding

No case was made out; there was nothing pending when the order was made and no material change in circumstances since

Reasoning

The closure order simply marked as closed a suit that had been concluded by judgment on 14th May, 2009. The Defendants' review application had been struck out on 29th June, 2010. Their real complaint was dissatisfaction with the judgment, which is a matter for appeal, not for setting aside the closure order.

p. 2
02

Whether there is any pending suit or application capable of reinstatement

Holding

There was no pending suit or application; setting aside the closure order would leave nothing for adjudication

Reasoning

Judgment concluded the suit on 14th May, 2009 and the review application was struck out on 29th June, 2010. The only surviving step was the notice of appeal, which belongs to the Court of Appeal process and cannot sustain further proceedings in this court.

p. 3
03

Who should bear the costs of the application

Holding

No order as to costs, because the Plaintiff did not respond to the application

Reasoning

Although the general rule is that costs follow the event and a successful litigant should normally get costs, the court departed from that rule because the Plaintiff did not respond to the application, making a no-costs order the appropriate outcome.

p. 3

Legal principles established

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  • Costs follow the event unless the court, for good reason, directs otherwise (proviso to Section 27(1) of the Civil Procedure Act).
  • A notice of appeal initiates proceedings in the Court of Appeal only and cannot be the subject of further litigation in the High Court.
  • Where a suit is fully concluded and no application is pending, the court may properly mark the file as closed.

Court orders

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  1. 1.The Defendants' notice of motion dated 10th December, 2019 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Section 80
  • Civil Procedure Act (Cap. 21)Section 27(1) (proviso)
  • Civil Procedure RulesOrder XLIV Rule 1 (former)
  • Court of Appeal Rules (former)Rule 74

Cases cited (1)

  • Hussein Janmohamed & Sons vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Inherent jurisdiction and provisions of the Civil Procedure Act (Cap. 21) on review, setting aside and reinstatement of suits

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, "Musa Kimathi v Joshua Mbaya & another [2021] KEELC 4087 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4087/eng@2021-03-10

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