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ELCOtherEnvironment & Land Case 42 of 2018· [2022] KEELC 13724 (KLR)

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)

Environment and Land Court
19 October 2022
1,017 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 5th and 6th defendants applied by notice dated 10.6.2022 for review of orders made on 3.2.2022 striking out their defence and counterclaim, and for leave to file a defence and counterclaim out of time. They had been joined as parties on 30.11.2021 and directed to file their defence and counterclaim by 15.12.2021, but the documents were filed late, lacked a verifying affidavit and supporting annexures, and were struck out at a case conference on 3.2.2022 after they failed to attend to explain. They also missed a mention on 14.3.2022. The plaintiffs and interested parties opposed, citing inordinate delay of four months and absence of any new evidence or apparent error. The court restated the requirements for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules: new and important matters not obtainable with due diligence, an error apparent on the face of the record, sufficient cause, and no undue delay. It found the applicants had not explained the four-month delay, their two absences, the defective filing, or their claimed inability to retrieve documents from Meru Criminal Case No. 35 of 2019, holding them the authors of their own misfortunes. Nonetheless, because the suit had not commenced, the court exercised discretion, reviewed the orders of 3.2.2022, and allowed the defence to be filed and served within 14 days with supporting documents under Order 7, with costs of the application to the plaintiffs and interested parties.

Key legal issues

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01

Whether the requirements for review were met

Holding

The applicants failed to demonstrate sufficient cause: they delayed four months, missed two court dates, and gave no credible explanation for the incomplete filing

Reasoning

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.

p. 2
02

Whether the court should nonetheless exercise discretion in favour of the applicants

Holding

Although undeserving, the court exercised discretion and reviewed the orders of 3.2.2022, allowing the defence to be filed within 14 days

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The orders dated 3.2.2022 striking out the defence and counterclaim are reviewed
  2. 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. 3.Costs of the application to the plaintiffs and the interested parties

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 7
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Rosemary Kahumba vs NBK
    (2016) eKLR

    That failure to comply with court directives has consequences

Jurisdiction invoked
Order 45 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act (review jurisdiction)

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, "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.