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ELCAllowedNot stated in judgment· [2022] KEELC 587 (KLR)

Flamingo Towers Limited & another v Homeland Media Group Ltd [2022] KEELC 587 (KLR)

Environment and Land Court (inferred; judgment does not state the court name), Nairobi
14 March 2022
1,605 words in judgment
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The bottom line

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A Kenyan court overturned its own earlier dismissal after an e-filing glitch, confirming courts can review their orders when technical errors cause injustice.

What this practically means

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Executive summary

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This ruling by Mogeni J at Nairobi determines the Appellants/Applicants' notice of motion dated 2/12/2021, brought under Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules 2010, seeking review and setting aside of the court's order of 29/11/2021 dismissing their application dated 12/10/2021. The application was supported by the affidavit of the applicants' advocate, Stephen Oyugi Okero, and opposed by a replying affidavit of Joe Musyimi Mutambu, with the respondent contending there was no new matter or sufficient reason for review and that the court had become functus officio. The court framed a single issue: whether the motion was merited. It held that Section 80 CPA read with Order 45 CPR confers jurisdiction to review its own orders, and that the functus officio doctrine does not bar review or correction, relying on the Supreme Court's decision in Raila Odinga v IEBC. On the merits, the court found the dismissal stemmed from a technological lapse: the Memorandum of Appeal, filed on 8/10/2021, was not reflected on the e-filing platform when the ruling was written. Treating this as a technical lapse, noting the application was made without unreasonable delay and that no prejudice would befall the respondent, the court found sufficient cause shown. Invoking the overriding objective and the court's inherent powers, the court allowed the motion, set aside/reviewed the order of 29/11/2021, reinstated the application dated 12/10/2021, directed the parties to appear on 27/04/2022 for directions, and ordered costs in the cause.

Key legal issues

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01

Whether the court has power to review its own order notwithstanding the functus officio doctrine

Holding

The court retains jurisdiction under Section 80 CPA read with Order 45 CPR to review its own order; functus officio does not prevent review or correction.

Reasoning

The respondent argued the court was functus officio and only the Court of Appeal could set aside the ruling. The court relied on the Supreme Court's articulation that functus officio does not prevent correction of errors or a judicial change of mind, and on Section 80 CPA and Order 45 CPR which expressly confer review jurisdiction over the court's own decrees and orders.

p. 2
02

Whether sufficient cause was shown for review

Holding

Yes - the dismissal resulted from a technological/e-filing lapse regarding the Memorandum of Appeal, the application was made without unreasonable delay, and no prejudice would befall the respondent.

Reasoning

The Memorandum of Appeal, though filed on 8/10/2021 as evidenced by a receipt, was not reflected on the e-filing platform when the ruling was delivered, leading to dismissal. The court treated this as a technical lapse occasioned by new technology, noted the prompt application for review, and found sufficient cause established with no prejudice to the respondent.

p. 2

Legal principles established

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  • Section 80 of the Civil Procedure Act read with Order 45 Rule 1 confers jurisdiction on the court to review its own judgment or order for mistake or error apparent on the face of the record or for any other sufficient reason, and the functus officio doctrine does not bar such review.
  • An error apparent on the face of the record must be obvious and self-evident.
  • 'Sufficient cause' should receive a liberal construction to advance substantive justice where no negligence or want of bona fides is imputed.

Court orders

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  1. 1.The Order of the Court made on 29/11/2021 dismissing the Appellants/Applicants' Application dated 12/10/2021 is set aside and/or reviewed
  2. 2.The Appellants/Applicants' Application dated 12/10/2021 is reinstated
  3. 3.Parties to appear before the Court on 27/04/2022 for directions on the Application dated 12/10/2021
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Act Cap 21Sections 1A, 1B, 3A, 80
  • Civil Procedure Rules 2010Order 45 Rule 1; Order 12 rule 7

Cases cited (11)

  • Stephen Gathua Kimani –Vs- Nancy Wanjira Waruingi / Providence Auctioneers
    (2016) eKLR
  • Republic –Vs- Public Procurement Administrative Review Board & 2 Others
    (2018) eKLR
  • Timber Manufacturers and Dealers –Vs- Nairobi Golf Hotels (K) Ltd
    HCCC No.5250/92
  • Raila Odinga –Vs- the IEBC & 3 others
  • Afit Kumar Rath –Vs- State of Orisa & Others
    (a Supreme Court cases) 596 at page 608
  • Registered Trustees of the Archdiocese of Dares Salaam –Vs- The Chairman Bunju Village Government & Others
  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Mohamed Kasabuli suing for and on behalf of the Estate of Halima Wamukoya Kasabuli versus Orient Commercial Bank Limited
    Civil Application No. Nai 302 of 2008 (UR.199/2008)
  • Kariuki Network Limited & Another versus Daly & Figgis Advocates
    Civil Application No. Nai 293 of 2009
  • Deepak Manlal Kamami and another versus Kenya Anti-Corruption and 3 others
    Civil Application No. 152 of 2009
  • Abdirahman Abdi also known as Abdirahman Muhumed Abdi v Safi Petroleum Products Limited & 6 Others
    (2011) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act Cap 21 and Order 45 Rule 1 of the Civil Procedure Rules 2010

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, "Flamingo Towers Limited & another v Homeland Media Group Ltd [2022] KEELC 587 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/587/eng@2022-03-14

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