Big Tree Farm Limited v Rono & 25 others (Environment & Land Case 104 of 2018) [2023] KEELC 674 (KLR)
The bottom line
#A Kenyan court dismissed a company's bid to revive its land case, ruling that its advocate being struck off was no excuse for missing court.
What this practically means
#Executive summary
#Key legal issues
#Applicable legal framework for review
Only order 45 rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act are relevant; the constitutional articles cited were irrelevant and unexplained; order 45 rule 5 does not exist; section 80 of the Civil Procedure Act, though relevant, was not cited
The court found the applicant did not explain the relevance of the constitutional provisions relied on. Section 1A concerns objectives, 1B the court's duty, and only 3A (inherent jurisdiction) is directly relevant. Rule 2 concerns appellate proceedings and does not apply. Rule 5 cited by the applicant does not exist in the rules, and the court criticised the phrase 'all enabling provisions of the law'.
Whether the Law Society of Kenya circular showing the former advocate was struck off the roll constitutes new and important matter or evidence justifying review
No - the fact was not material to the earlier decisions, which were based on the unexplained non-attendance of the plaintiff, not the advocate's standing
The court held that the validity of the former advocate's practising status was never a consideration in refusing the adjournment on February 1, 2022, nor in the ruling of September 22, 2022. The dismissal rested on the unexplained non-attendance of the plaintiff under order 12 rule 3. No affidavit from Mr Simiyu Wafula or Mr Waliaula supported the suppression allegation, so the alleged 'discovery' could not have led the court to a different conclusion.
Whether there was an error apparent on the face of the record
No error apparent on the face of the record was established
The applicant argued the court erred in expecting the former advocate to swear an affidavit explaining his non-attendance and non-communication. The court found the September 22, 2022 ruling was based on the merits - the inadequacy of the adjournment reasons, misleading of the court, and lack of vigilance by the applicant - and any dissatisfaction with that finding lay in an appeal, not review. The instant application merely repeated matters already litigated.
Whether the mistake of counsel should be visited on the client
No mistake of counsel was visited on the client; counsel appeared, presented reasons which the court found insufficient, and the suit was dismissed for the plaintiff's own non-attendance
On February 1, 2022, Mr Waliaula appeared, sought an adjournment on stated reasons and asked to step aside for Mr Simiyu Wafula; the court waited all day but neither he nor Mr Simiyu Wafula returned, and the suit was dismissed. The court held there was no mistake of advocate in this sequence, and even had the advocate returned later unwilling to proceed, the adjournment had already been lawfully denied as insufficient.
Whether the applicant's right to be heard was denied
The right was granted and squandered; a party cannot claim breach of a right it has already utilized
The court noted it gave the parties the whole morning and much of the afternoon of February 1, 2022 before dismissing the suit. Relying on Muchanga Investments and Estate of Joab Odero, it held the applicants and their counsel misused their opportunity to be heard, and litigation must come to an end. It further condemned the deponent's exaggerated claims of contacting the advocate 'a million times' as false swearing under section 114 of the Penal Code.
Legal principles established
#- An application for review must be made without unreasonable delay and the applicant must satisfactorily explain the delay however small, since review is an equitable discretionary remedy
- Whether delay is unreasonable and whether a reason is sufficient are questions of fact to be assessed on the circumstances of each case
- A party who has been given an opportunity to be heard and squanders it cannot claim denial of the right to be heard
- A party should have his day in court only when there is something to hear; judicial time should be allocated on a need basis
- Facts deponed to falsely in affidavits amount to false swearing contrary to section 114 of the Penal Code and parties must be cautioned against exaggeration
Court orders
#- 1.The notice of motion dated October 6, 2022 seeking review of the ruling delivered on September 22, 2022 is dismissed as wholly unmeritorious
- 2.The applicant to bear the costs of the application
- 3.Orders accordingly
- Jurisdiction invoked
- Order 45 rules 1 and 2 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (articles 22, 23, 28, 40, 43, 45, 48, 50 and 159 of the Constitution cited by the applicant but found irrelevant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Big Tree Farm Limited v Rono & 25 others (Environment & Land Case 104 of 2018) [2023] KEELC 674 (KLR)", Case Analysis (2023). ELC Case at Kitale (ruling of September 22, 2022 under review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/674/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.