PP Flora Limited & another v Development Bank of Kenya Limited (Environment & Land Case 13 of 2018) [2023] KEELC 223 (KLR)

The court restated that review is restricted to discovery of new and important matter, error apparent on the face of the record, or other sufficient reason, applied without unreasonable delay. The plaintiffs' explanation - illness of the 2nd plaintiff - was unsupported by evidence, the reply was filed late (two days before ruling), and the reply itself disclosed no defence to the dismissal application. The suit had lain unprosecuted beyond the statutory period under Order 17 rule 2, and the alleged sale of the suit property did not excuse non-prosecution. The costs challenge was equally misconceived as costs follow the event.

The defendant contended that the plaintiffs were contesting the merits of the June 30, 2022 ruling, which is a matter for appeal, relying on Ferrotech v Mwadziwe Ali. The court did not determine the application on that basis, but instead examined whether the pleaded grounds fell within Order 45 rule 1, concluding they did not - thereby reaching the same practical result without characterising the application as an appeal.

The plaintiffs argued there was no basis for costs since the court had earlier found merit in their case in the November 27, 2018 ruling and the suit was overtaken by events. The court held that absent any plea at the hearing of the dismissal application for a graceful exercise of discretion on costs, the natural consequence of dismissal was condemnation to costs under section 27 of the Civil Procedure Act.