Leonard W. Makio (as the admin of estate of Francis M. Obale-dcd) v Dismas Omukubi Ong’angi [2021] KEELC 4338 (KLR)
The bottom line
#The Busia Environment and Land Court set aside its 2019 ruling and ordered a fresh hearing, but penalised the applicant for pursuing both an appeal and a review of the same decision.
What this practically means
#Executive summary
#Key legal issues
#Whether the pendency of a notice of appeal bars the application for review
The court found that pursuing both fronts was abusive but nonetheless proceeded to consider the merits and allowed the application on sufficient cause
Order 45(2) allows a party to apply for review or appeal but not both. The applicant filed a notice of appeal on 29/11/2019 against the very ruling he sought to review and did not disclose its status. That duplication amounted to an abuse of process for which the application could have been struck out, though the court went on to determine the application on its merits.
Whether the death of the original plaintiff constituted discovery of new and important evidence
No - the plaintiff's counsel who filed grounds of opposition was still on record and had implied authority; the death was not new evidence justifying review
The same counsel who opposed the defendant's application on 15/10/2019 never indicated loss of instructions nor filed an application to cease acting. His claim that the death was unknown to him was defeatist and misleading. Matters such as the filing of the application before removing the defendant's advocates were within counsel's knowledge with due diligence.
Whether sufficient cause existed to set aside the ruling of 14/11/2019
Yes - the 14/11/2019 ruling reversed the applicant's acquisition of title on 4/12/2015, so sufficient cause existed to let the applicant be heard
The applicant had acquired title to the disputed land on 4th December 2015, and the ruling of 14th November 2019 reversed that gain. That consequence justified allowing the applicant an opportunity to be heard on why the consent order conferring the land should not be set aside, warranting setting aside the ruling and a rehearing of the application of 27/6/2019.
Legal principles established
#- A party may not simultaneously pursue an appeal and a review of the same order; doing so is an abuse of court process
- A duly instructed advocate has implied authority to act for the client, and counsel who has not filed notice to cease acting cannot later disown proceedings conducted on the client's behalf
Court orders
#- 1.The orders made by the court on 14th November 2019 are set aside
- 2.The defendant's application dated 27th June 2019 shall be heard afresh
- 3.Costs of the motion dated 20th July 2020 awarded to the defendant, assessed at Kshs.7,000, payable within 30 days, in default execution to issue
- Jurisdiction invoked
- Section 3A and 63(e) of the Civil Procedure Act and Order 45 Rule 1-3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leonard W. Makio (as the admin of estate of Francis M. Obale-dcd) v Dismas Omukubi Ong’angi [2021] KEELC 4338 (KLR)", Case Analysis (2021). Notice of motion dated 20/7/2020 (Busia ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4338/eng@2021-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.