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ELCDismissedNotice of Motion dated February 28, 2022 (case number not stated in the ruling)· [2023] KEELC 589 (KLR)

Thoya & another v Arbitration Board & 3 others; Chea (Interested Party) (Miscellaneous Application 22 of 2021) [2023] KEELC 589 (KLR)

Environment and Land Court
6 February 2023
1,706 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that your lawyer's mistake is not grounds to reopen a case, especially when filed late without explanation.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determines a Notice of Motion dated February 28, 2022 by Hamisi Gunga Baya (with another applicant) seeking review and setting aside of the court's ruling and orders of November 30, 2021, which had dismissed his earlier application. The applicant attributed the dismissal to his advocate's failure to annex a consent from the Land Adjudication Officer dated April 12, 2021, a document the applicant said he had given to his advocate. The application invoked Section 80 of the Civil Procedure Act and Order 45 Rule 1, with counsel urging the court's unfettered discretion and Article 159(2)(d) on procedural technicalities. The Interested Party opposed through grounds of objection, arguing non-compliance with Order 45 Rule 1(b) and res judicata under Section 7 of the Civil Procedure Act, relying on the IEBC v Maina Kiai decision. The court framed a single issue: whether the application met the review threshold. It held that the consent was within the knowledge of both the applicant and his counsel, so there was no discovery of new and important matter; an advocate's failure to attach a document is negligence, not a mistake or error apparent on the face of the record; counsel had an opportunity during the original application to cure the omission; and the application was filed some three months after the ruling without explanation of the delay. The court applied Alpha Fine Foods and Rosemary Wanjiru Njiraini and dismissed the motion with costs.

Key legal issues

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01

Whether the application meets the threshold for review under Section 80 of the Civil Procedure Act and Order 45 rule 1

Holding

The application fails; the document relied on was known to both applicant and counsel, there was no new and important matter, no error apparent on the record, and inordinate unexplained delay of approximately three months

Reasoning

The court analysed the grounds for review: discovery of new and important evidence not within the applicant's knowledge after due diligence, mistake or error apparent on the face of the record, or other sufficient reason. The consent from the Land Adjudication Officer was in the applicant's and his advocate's hands before the ruling. Advocate negligence in attaching it is not an error apparent on the record. Further, counsel had an opportunity during the hearing to cure the omission, and the three-month delay was unexplained.

p. 3
02

Whether a mistake by an advocate falls within the review categories under Order 45 rule 1

Holding

No; only mistakes or errors apparent on the face of the record qualify, and an advocate's failure to attach a document does not

Reasoning

The court distinguished between advocate negligence and mistake or error apparent on the record. The impugned application had been canvassed and counsel had an opportunity to respond, put his house in order, or seek leave to attach the consent, which was a core document. Failure to do so was negligence attributable to the party, not a reviewable error.

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Legal principles established

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  • A mistake by an advocate in failing to attach a document in his possession is not an error apparent on the face of the record capable of grounding review under Order 45 rule 1
  • Review requires discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason, applied for without unreasonable delay

Court orders

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  1. 1.The Notice of Motion dated February 28, 2022 seeking review of the ruling and orders of November 30, 2021 is dismissed
  2. 2.Costs to the Respondent
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (inherent review jurisdiction of the court that made the order)

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, "Thoya & another v Arbitration Board & 3 others; Chea (Interested Party) (Miscellaneous Application 22 of 2021) [2023] KEELC 589 (KLR)", Case Analysis (2023). Notice of Motion dated February 28, 2022 (case number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/589/eng@2023-02-06

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