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ELCDismissed· [2022] KEELC 1714 (KLR)

Benson W. Kaos & 72 others v Attorney General & 85 others [2022] KEELC 1714 (KLR)

Environment and Land Court
3 February 2022
3,736 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The 1st to 6th Defendants, represented by the Office of the Attorney-General, applied under Articles 47 and 159(2) of the Constitution, Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules for review, setting aside and/or vacation of the judgment delivered on 27/5/2021 in the underlying suit dated 16/3/2017. They contended there was an error apparent on the face of the record because their submissions, prepared and emailed to court on 31/3/2021, were not placed before the judge when the judgment was prepared. State Counsel Peter Kuria swore the supporting affidavit. The Plaintiffs opposed through a replying affidavit of Benson Kaos, asserting the submissions were filed out of time, that the issues they raised were fully addressed in the judgment, and that no error existed. The court framed two issues: whether the grounds and facts merited the application, and what orders and costs should issue. It held the delay of just under two months was not unreasonable, but that the submissions, filed 27 days after the mention date and never followed up by the Applicants, were not on the court record when judgment was prepared; hence their non-consideration was not an error apparent on the face of the record. The court further held, drawing on multiple authorities, that submissions are not pleadings or evidence and their omission cannot ground review, and that it had examined the submissions and found nothing capable of changing the outcome. The application was dismissed with no order as to costs. Judgment delivered at Kitale via electronic mail on 3rd February 2022 by Fred Nyagaka, Judge, ELC.

Key legal issues

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01

Whether there was undue delay in bringing the review application

Holding

The delay of just under two months from judgment (27/5/2021) to application (23/7/2021) was not unreasonable

Reasoning

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.

p. 2
02

Whether failure to consider the Applicants' submissions constituted an error apparent on the face of the record

Holding

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

Reasoning

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.

p. 3
03

Whether non-consideration of submissions, even if an error, would entitle a party to review

Holding

No - submissions are not pleadings or evidence; their non-consideration is not fatal to a judgment and does not ground review

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 22/07/2021 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A, 80
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (10)

  • Paul Odhiambo Onyango & another v Kalu Works Limited
    [2020] eKLR
  • Nathan Chesang Moson v Grand Creek Llc & another
    [2020] eKLR
  • Chandrakhant Joshibhai Patel v R
    [2004] TLR, 218
  • Muyodi vs. Industrial and Commercial Development Corporation & Another
    [2006] 1 EA 243
  • Nyamogo & Nyamogo -vs- Kogo
    (2001) EA 174
  • Erastus Wade Opande vs. Kenya Revenue Authority & Another
    Kisumu HCCA No. 46 of 2007
  • Nancy Wambui Gatheru vs. Peter W Wanjere Ngugi
    Nairobi HCCC No. 36 of 1993
  • Ngang'a & Another vs. Owiti & Another
    [2008] 1 KLR (EP) 749
  • Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Patrick Simiyu Khaemba v Kenya Electricty Transmission & another
    [2021] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.