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ELCDismissedNotice of Motion dated 17/1/2020 (in the petition filed 23/11/2010)· [2021] KEELC 4505 (KLR)

Pondeni Farmers Co-operative Society Ltd & 2 others v Commissioner for Cooperative Development & 4 others [2021] KEELC 4505 (KLR)

Environment and Land Court
4 February 2021
2,971 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kitale Environment and Land Court refused to review its earlier decision, confirming that missed arguments, unexplained delay, and non-essential substitutions cannot reopen a concluded ruling.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J) on a notice of motion dated 17/1/2020 seeking review and setting aside of the court's ruling of 30/9/2019, which had dismissed an application to substitute the deceased 2nd petitioner, Nathan Mutali Mmas, a former chairman of the 1st petitioner society, with Benjamin J.S.S. Shamala Imbogo. The application, supported by the affidavit of Vice Chairman Tom Wanyonyi and unopposed, invoked Articles 50, 51 and 159 of the Constitution, the Civil Procedure Act and Orders 45 and 46 of the Civil Procedure Rules. The applicant argued that the deceased had no personal interest, having sued only in his official capacity as chairman required under the Co-operative Societies Act; that the motion for substitution merely complied with Order 24 CPR; that minutes of 25/5/2019 newly discovered authorised the substitution; and that the 3rd petitioner had been inadvertently omitted. The court framed two issues: whether the review threshold under Order 45 Rule 1 was met, and costs. It held that the capacity and grant-of-letters issues had been conclusively addressed in the 30/9/2019 ruling and could not be re-litigated on review; that no provision requires a society's chairman to be a co-petitioner; that Order 24 rules 2 and 3 do not mandate substitution of every deceased plaintiff and were inapplicable since the cause of action survived the surviving petitioners; that the purportedly discovered minutes fell under no Order 45 ground; and that the four-and-a-half-month unexplained delay was inordinate. The application was dismissed with no orders as to costs, and the 3rd petitioner's name was reinstated in the title, no striking-out order having been found.

Key legal issues

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01

Threshold for review under Order 45 Rule 1

Holding

The grounds — new and important matter, error apparent on the record, sufficient reason, and no undue delay — were not met

Reasoning

The court restated the Order 45 test and found each limb unmet. The capacity issue and need for grant of letters were conclusively dealt with in the 30/9/2019 ruling; the minutes of 25/5/2019 were not mentioned in the original application and were of no consequence; and the invocation of Order 24 raised a legal argument available earlier, not new matter.

p. 5
02

Applicability of Order 24 CPR to constitutional petitions

Holding

CPR provisions may be invoked where the Mutunga Rules are silent, but Order 24 rules 2 and 3 did not aid the applicant since the cause of action survived to the surviving petitioners

Reasoning

Relying on Meme v Republic, the court accepted that Civil Procedure Rules can supplement the Mutunga Rules where silent on substitution. However, Order 24 rule 3(1) applies only where the cause of action does not survive; here the petition concerned cancellation of registration, receivership and injunctive relief concerning the society's land, so the cause survived and substitution of the deceased chairman was unnecessary.

p. 4
03

Inordinate delay

Holding

Filing the review nearly four and a half months after the impugned ruling, unexplained, constituted inordinate delay

Reasoning

The impugned ruling was delivered on 30/9/2019 and the review application was filed on 12/2/2020. Order 45 requires application without unreasonable delay, and the applicant offered no explanation, which independently disentitled him to review.

p. 4

Legal principles established

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  • A court may review its orders only upon discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, made without unreasonable delay
  • Issues conclusively addressed in a prior ruling cannot form grounds of review
  • Order 24 CPR does not mandate substitution of every deceased plaintiff; it applies only in deserving cases, and where the cause of action survives to surviving petitioners substitution is unnecessary
  • An argument not raised in the original application is not tenable in a review
  • An application for review must be made without unreasonable delay

Court orders

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  1. 1.The application dated 17/1/2020 is dismissed
  2. 2.There shall be no orders as to costs
  3. 3.The 3rd petitioner's name is reinstated in the title as no order striking him out was found
Jurisdiction invoked
Articles 50, 51 and 159 of the Constitution; Sections 1A, 3A and 63(e) Civil Procedure Act; Order 46 Rule 1, Order 51 Rule 1 Civil Procedure Rules 2010; review under Order 45 Rule 1

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, "Pondeni Farmers Co-operative Society Ltd & 2 others v Commissioner for Cooperative Development & 4 others [2021] KEELC 4505 (KLR)", Case Analysis (2021). Notice of Motion dated 17/1/2020 (in the petition filed 23/11/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4505/eng@2021-02-04

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