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ELCAllowedNot stated in judgment (ex parte applicants' notice of motion dated 8/11/2022)· [2023] KEELC 154 (KLR)

Republic v Land Registrar Nakuru Land Registry; Ngina & another (Exparte) (Administrators of the Estate of the late Kenneth Kimani Kahura) (Environment and Land Judicial Review Case E3 of 2021) [2023] KEELC 154 (KLR)

Environment and Land Court
24 January 2023
MNMwangi Njoroge
1,829 words in judgment
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The bottom line

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A Kenyan court set aside its own ruling after discovering a registry filing error had caused the applicants' case to be dismissed unfairly.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru on the ex parte applicants' notice of motion dated 8/11/2022 seeking review and setting aside of the ruling and orders made by Hon. Mwangi Njoroge on October 25, 2022, which had vacated the leave granted on March 22, 2021 in judicial review proceedings on the basis that no substantive motion was on record. Supported by the affidavit of Kenneth Wilson, the applicants contended that the substantive motion dated March 29, 2021 had been filed via the official court email address on 8/04/2021, served and acknowledged, but was inadvertently never downloaded, printed and placed on the court file by the registry, so the ruling was delivered on a mistaken premise amounting to an error on the face of the record. The respondents filed no response and no submissions were filed. The court framed a single issue: whether it should review its orders of October 25, 2022. Relying on section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and the principles in Republic v Public Procurement Administrative Review Board & 2 others and Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya, the court found from the annextures that the motion had indeed been filed, that its absence from the file was a registry error, and that this constituted a sufficient cause for review. The court set aside the orders of October 25, 2022 and directed the parties to a mention on 8/2/2023 for directions on the hearing of the substantive motion dated March 29, 2021.

Key legal issues

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Whether the ruling of October 25, 2022 should be reviewed and set aside on the ground of error apparent on the face of the record

Holding

The application was allowed because the substantive motion had in fact been filed via the official court email on 8/04/2021 but was not placed on the court file by the registry, an error apparent on the face of the record justifying review.

Reasoning

The court perused the file and annextures and concluded the ex parte applicants had filed their substantive motion dated March 29, 2021 by email on 8/04/2021. The registry failed to download, print and place the motion on the file, so the ruling of October 25, 2022 vacating leave was premised on a mistake. That mistake falls within Order 45 Rule 1 as a sufficient cause for review, notwithstanding the applicant's own slothfulness in assisting the court.

p. 4

Legal principles established

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  • A mistake by the court registry resulting in a filed substantive motion not being placed on the court file constitutes an error apparent on the face of the record sufficient for review under Order 45 Rule 1
  • The grounds for review are restricted to those enumerated in Order 45 Rule 1

Court orders

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  1. 1.The orders issued on October 25, 2022 by this honourable court are hereby set aside
  2. 2.Parties to attend a mention on 8/2/2023 for directions on the hearing of the substantive Notice of Motion dated March 29, 2021

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (2)

  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya
    [2019] eKLR, High Court of Kenya Nairobi Judicial Review Division Misc. Application No. 317 of 2018
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (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, "Republic v Land Registrar Nakuru Land Registry; Ngina & another (Exparte) (Administrators of the Estate of the late Kenneth Kimani Kahura) (Environment and Land Judicial Review Case E3 of 2021) [2023] KEELC 154 (KLR)", Case Analysis (2023). Not stated in judgment (ex parte applicants' notice of motion dated 8/11/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/154/eng@2023-01-24

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