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ELCAllowedEnvironment & Land Case 247 of 2021· [2022] KEELC 15672 (KLR)

Mambo (Administrator of the Estate of Mohamed Mambo) & 3 others v Hawkins & 4 others

Environment and Land Court
21 November 2022
ADA E Dena
3,575 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (A E Dena J) disposed of three applications in a long-running land dispute over plots in Diani, Kwale, originally filed in 2006 as Mombasa HCCC No 197 of 2006 [OS]. The 3rd defendant, Orbit Developers Limited, applied by notice of motion dated April 6, 2022 seeking review and setting aside of orders of March 23, 2022 setting the suit for hearing, contending the suit had been dismissed for want of prosecution on November 9, 2018 and never reinstated. The plaintiffs opposed, invoking estoppel and non-compliance with Order 45. The court framed one issue: whether the applicants met the threshold for review under Section 80 of the Civil Procedure Act and Order 45. Holding the review requirements disjunctive, the court found no new evidence but exercised its discretion on the grounds of error/sufficient reason and, more significantly, its inherent powers under Section 3A and Article 159(2)(d) of the Constitution. Noting the suit had never been heard on merit, the loss of the original court file, missing proceedings, and continued participation by both parties after dismissal, the court reinstated the suit and set aside the November 9, 2018 dismissal orders. It also allowed the 3rd defendant's application of May 23, 2019 in terms of prayer (iii), setting aside the orders of February 13, 2014 made by Justice Mukunya, which had, among other things, vacated consent orders and directed registration and eviction. Costs were made costs in the cause, and the status quo orders of Justice Yano were restated.

Key legal issues

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01

Whether the orders of March 23, 2022 setting the suit down for hearing should be reviewed

Holding

The court exercised its discretion to reinstate the suit and set aside the dismissal of November 9, 2018, invoking Article 159(2)(d) and its inherent powers under Section 3A of the Civil Procedure Act.

Reasoning

The suit had never been heard on merit, had been in court since 2006, and both parties had continued filing applications after the dismissal as if it had never been issued. The court found this a proper case to focus on substantive issues, noting the loss of the original court file and missing proceedings, and exercised its inherent powers for the ends of justice.

p. 5
02

Whether the orders of February 13, 2014 delivered by Justice Mukunya should be set aside

Holding

The application dated May 23, 2019 was allowed in terms of prayer (iii), setting aside the ruling of February 13, 2014 and consequential orders.

Reasoning

The court noted the serious allegations against the impugned orders, that the suit had not proceeded to full hearing on merit, that most of the orders had been overtaken by events, and that no prejudice would be occasioned. It invoked Article 159 of the Constitution and its inherent powers to vacate the orders in the interest of justice despite the delay.

p. 7

Legal principles established

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  • The requirements for review under Order 45 are disjunctive, not conjunctive, save that the application must be made without unreasonable delay.
  • A court may exercise its inherent powers to reinstate a suit and rectify mistakes in the interest of justice notwithstanding procedural lapses.

Court orders

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  1. 1.The suit is reinstated and the dismissal orders made on November 9, 2018 are set aside
  2. 2.The application dated April 6, 2022 is allowed in terms of orders (ii) and (iii) thereof
  3. 3.The application dated May 23, 2019 is allowed in terms of prayer (iii) thereof, setting aside the ruling/orders of February 13, 2014
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 45 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Practice Direction No 28(k) (Gazette Notice No 5178/2014)

Cases cited (6)

  • Carol Construction Engineers Limited & Another v National Bank of Kenya
    [2002] eKLR

    Definition and doctrine of estoppel

  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR

    Where application is based on sufficient reason it is for the court to exercise its discretion

  • Evan Bwire v Andrew Nginda

    Review allowed only on very strong grounds particularly where effect is re-opening a case afresh

  • Bank of Africa Kenya v Put Sarajevo General Engineering Co Ltd & 2 others
    [2018] eKLR

    Court ought to rectify counsel's mistake if interest of justice so dictates

  • Belinda Murai & 9 others v Amos Wainaina
    (1979) eKLR

    Impact of a mistake; door of justice not closed by mistake of an experienced person

  • Thugi River Estate Limited & another v National Bank Kenya Limited & 3 others
    [2015] eKLR

    Rationale and objectives of status quo orders

Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 45 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

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, "Mambo (Administrator of the Estate of Mohamed Mambo) & 3 others v Hawkins & 4 others", Case Analysis (2022). Environment & Land Case 247 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15672/eng@2022-11-21

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