Kennon Mwiti Mbae (suing as the legal representative of the Estate of Silas Judah Mbae (Deceased) & another v Zaverio Kiamba Mwamba & 5 others; Z Nyamu M'Arimi & another (Interested Parties)
The bottom line
#A Kenyan court revived a struck-out defence despite the defendants' serious delays, but punished them with costs and refused their counterclaim.
What this practically means
#Executive summary
#Key legal issues
#Whether the requirements for review were met
The applicants failed to demonstrate sufficient cause: they delayed four months, missed two court dates, and gave no credible explanation for the incomplete filing
The court enumerated four unexplained failures: the four-month delay in filing the review application, absence from court on two occasions despite directions being taken in the presence of their advocate, the unexplained failure to sign a verifying affidavit and attach annexures, and the absence of any letters evidencing attempts to retrieve documents from a criminal case. The applicants were held to be authors of their own misfortunes.
Whether the court should nonetheless exercise discretion in favour of the applicants
Although undeserving, the court exercised discretion and reviewed the orders of 3.2.2022, allowing the defence to be filed within 14 days
The court found the applicants undeserving of the orders sought but noted the suit had not yet commenced, and in that context exercised its discretion to review the striking-out orders, permitting the defence and supporting documents to be filed within 14 days under Order 7 of the Civil Procedure Rules, while awarding costs against the applicants.
Legal principles established
#- A party seeking review must demonstrate new and important matters not obtainable with due diligence, an error apparent on the face of the record, sufficient cause, and must apply without undue delay
- Failure to comply with court directives has consequences
Court orders
#- 1.The orders dated 3.2.2022 striking out the defence and counterclaim are reviewed
- 2.The defence shall be filed and served within 14 days accompanied by supporting documents in line with Order 7 of the Civil Procedure Rules
- 3.Costs of the application to the plaintiffs and the interested parties
- Jurisdiction invoked
- Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennon Mwiti Mbae (suing as the legal representative of the Estate of Silas Judah Mbae (Deceased) & another v Zaverio Kiamba Mwamba & 5 others; Z Nyamu M'Arimi & another (Interested Parties)", Case Analysis (2022). Environment & Land Case 42 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13724/eng@2022-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.