Francis Mwangi Chege & 4 othersv Bernard Waweru Gitau & 2 others [2021] KEELC 4685 (KLR)
The bottom line
#The Environment and Land Court in Kajiado refused to undo a 2018 land inhibition order and rejected the argument that the plaintiffs' land suit had stalled.
What this practically means
#Executive summary
#Key legal issues
#Whether the inhibition orders of 27th February 2018 should be reviewed or set aside under Order 45
Review refused; the threshold under Order 45 rule 1 was not met and the Defendants had elected an appeal instead
The court noted the Defendants, aggrieved by the ruling of 5th February 2018, filed a Notice of Appeal and a motion for stay which remain unprosecuted. Order 45 permits appeal or review, not both. Moreover, the Defendants knew of the subdivision during the subsistence of the suit and concealed it from the court, so they cannot claim discovery of new and important matter or error apparent on the record.
Whether the suit should be dismissed for want of prosecution under Order 17 rule 2
Dismissal refused; delay was excusable and there are triable issues
The court applied the Ivita v Kyumbu test and the criteria in Mwangi S. Kimenyi v Attorney General. The record showed pending interlocutory applications, ongoing police investigations culminating in criminal charges against the Defendants, and delay by the Land Registrar in registering the inhibition. There was no intentional, contumelious delay, no substantial risk to fair trial, and the Plaint raised triable issues meriting ventilation.
Whether the Anita Chelangat O'Donovan decision justified setting aside the orders
Distinguished; in that case the transfer predated the order, whereas here the subdivision was effected by a different entity while the suit was pending
The court distinguished the authority relied on by the Defendants because the suit land in the present case was subdivided by Roysambu Properties Agencies Ltd, a different entity, while the suit was still pending, engaging the doctrine of lis pendens rather than rendering the orders ineffectual.
Legal principles established
#- A party may pursue either an appeal or a review of an order, but not both
- Where a party knew of facts rendering an order ineffectual at the time it was made, it cannot claim discovery of new matter for review
- Dismissal for want of prosecution requires prolonged, inexcusable delay causing grave injustice or substantial risk to fair trial; each case is decided on its own facts
Court orders
#- 1.The application dated 29th June 2020 is found unmerited and is disallowed
- 2.Costs will be in the cause
- Jurisdiction invoked
- Order 17 Rule 2(1) and (3) and Order 45 Rule 1 of the Civil Procedure Rules; Articles 40(1)(3) and 159(2)(d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Mwangi Chege & 4 othersv Bernard Waweru Gitau & 2 others [2021] KEELC 4685 (KLR)", Case Analysis (2021). Not stated in the excerpt (suit concerning land parcel Kajiado/Kitengela/2038). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4685/eng@2021-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.