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ELCDismissedApplication dated 30.10.2019 (appeal against judgment delivered 20.12.2018 by Judge Mwangi Njoroge)· [2021] KEELC 4355 (KLR)

Stephen Muthamia Marete & 2 others v Mary Naitore Kinyua (enjoined as the legal representative of the estate of Patrick Kinyua Iringo (Deceased) [2021] KEELC 4355 (KLR)

Environment and Land Court
17 February 2021
LMLucy N. Mbugua
842 words in judgment
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The bottom line

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The Environment and Land Court in Meru dismissed an application to review and stay a land judgment because the applicants missed filing deadlines and couldn't prove they lacked notice.

What this practically means

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Executive summary

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The applicants, described as applicants/appellants, moved the Environment and Land Court at Meru by an application dated 30.10.2019 seeking a stay of execution, review and setting aside of a judgment delivered on 20.12.2018 by Judge Mwangi Njoroge. The application was grounded on Order 22 rule 22, Order 45 rule 1 and Order 51 rule 1 of the Civil Procedure Rules, Sections 1A and 1B of the Civil Procedure Act and Article 159 of the Constitution. The applicants contended that the judgment wrongly recorded that they had not filed submissions when theirs had been filed on 2.10.2017, and that judgment was delivered without notice. The respondents opposed, contending that the applicants failed to comply with the directions of Judge Njoroge given on 28.6.2018 and thus failed to prosecute the appeal. Relying on Order 45 rule 1 and the Court of Appeal decision in National Bank of Kenya Ltd vs Ndungu Njau, Lucy N. Mbugua, ELC Judge, held that the submissions the court was bound to recognize were those to be filed within 21 days after 26.6.2018 pursuant to the directions of 28.6.2018, and the appellants never filed them, offering no plausible explanation for the failure. On the complaint of non-notification of the judgment date, the applicants failed to avail the cause list for 20.12.2018, which would have shown whether parties had notice. Finding no error apparent on the face of the record and no proof of lack of notice, the court dismissed the application with costs to the respondents. The ruling was delivered by electronic mail pursuant to the COVID-19 practice directions, with parties deemed to have waived compliance with Order 21 rule 1.

Key legal issues

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01

Whether the applicants demonstrated an error apparent on the face of the record warranting review

Holding

No error was established. The submissions the court was required to consider were those filed pursuant to the directions of 28.6.2018, and the appellants failed to file them as directed.

Reasoning

The court traced the record to the directions of 28.6.2018, which required the appellants to file submissions within 21 days. The submissions allegedly filed on 2.10.2017 predated those directions and were not the ones the judge was bound to recognize. Having failed to comply with the directions, the applicants could not claim the judgment rested on an error on the face of the record.

p. 2
02

Whether judgment was delivered without notice to the applicants

Holding

The claim of lack of notice was not proved because the applicants did not avail the cause list for 20.12.2018.

Reasoning

The court noted that a cause list is ordinarily dispatched to advocates in advance and would be the proper basis for determining whether parties had notice of the judgment date. The applicants bore the burden of producing it and did not, so the averment of non-notification failed on the evidence.

p. 2

Legal principles established

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  • Review under Order 45 rule 1 requires discovery of new and important matter, a mistake or error apparent on the face of the record, or any other sufficient reason, and must be sought without unreasonable delay
  • A review may only be granted to correct an error or omission that is self-evident and requires no elaborate argument

Court orders

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  1. 1.The application dated 30.10.2019 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 rule 22
  • Civil Procedure RulesOrder 45 rule 1
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 159

Cases cited (1)

  • National Bank of Kenya Ltd vs Ndungu Njau
    Nairobi CA No. 211 of 1996
Jurisdiction invoked
Order 22 rule 22, Order 45 rule 1 and Order 51 rule 1 of the Civil Procedure Rules; Sections 1A and 1B of the Civil Procedure Act; Article 159 of the Constitution

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, "Stephen Muthamia Marete & 2 others v Mary Naitore Kinyua (enjoined as the legal representative of the estate of Patrick Kinyua Iringo (Deceased) [2021] KEELC 4355 (KLR)", Case Analysis (2021). Application dated 30.10.2019 (appeal against judgment delivered 20.12.2018 by Judge Mwangi Njoroge). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4355/eng@2021-02-17

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