Benson W. Kaos & 72 others v Attorney General & 85 others [2022] KEELC 1714 (KLR)
The bottom line
#A Kenyan court dismissed a request to revisit its judgment, ruling that late-filed submissions not on the court file were never the judge's responsibility to consider.
What this practically means
#Executive summary
#Key legal issues
#Whether there was undue delay in bringing the review application
The delay of just under two months from judgment (27/5/2021) to application (23/7/2021) was not unreasonable
The court held that what constitutes undue delay depends on the nature of the application and must be assessed case by case. Unlike strict-timeline applications such as extension of time, a period of five days shy of two months was not unreasonable for a review application of this nature.
Whether failure to consider the Applicants' submissions constituted an error apparent on the face of the record
No - the submissions were filed late and were not on the court record when the judgment was prepared, so their non-consideration was not an error apparent on the record
The submissions were emailed to court 27 days after the mention date and the Applicants never followed up to confirm receipt, printing, stamping and placement before the judge. A document is only part of the record if duly filed in the court file at the time the error is alleged. The court also noted the Applicants partly caused the problem by not attending the mention. The court relied on Paul Odhiambo Onyango v Kalu Works and Muyodi v ICDC on the meaning of error apparent on the face of the record.
Whether non-consideration of submissions, even if an error, would entitle a party to review
No - submissions are not pleadings or evidence; their non-consideration is not fatal to a judgment and does not ground review
Drawing on Mwera J in Opande v KRA, Gatheru v Ngugi, Ngang'a v Owiti and Arap Moi v Muriithi, the court held that submissions merely crystallise and focus a party's case; the basis of any decision is the pleadings, evidence and applicable law. The court examined the impugned submissions and found no point raised that the court had not considered which could have led to a different conclusion.
Legal principles established
#- Failure to consider submissions which are not on the court record is not an error apparent on the face of the record warranting review
- Submissions are not evidence and do not form the basis of a court's decision; a court may decide a case without considering submissions
Court orders
#- 1.The application dated 22/07/2021 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Articles 47 and 159(2) of the Constitution of Kenya, Sections 1, 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and Orders 12 Rule 7 and 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mangeni (Suing as the Legal Representative of the Estate of Joel Abuti Eshitashe - Deceased) v National Bank of Kenya & another (Environment and Land Appeal E007 of 2024) [2026] KEELC 3828 (KLR)[2026] KEELC 3828 (KLR)10 Jun 2026
- Jabavu Village Limited v Curson aka Pavel Luvedit Vaclav Curson (Environment and Land Case Civil Suit E040 of 2022) [2026] KEELC 2879 (KLR)[2026] KEELC 2879 (KLR)8 May 2026
Cite this brief
#Cite this brief
Caselaw, "Benson W. Kaos & 72 others v Attorney General & 85 others [2022] KEELC 1714 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1714/eng@2022-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.