Cherret v Lapedo
The bottom line
#A Kenyan court set aside orders made against a landowner who was never properly served, confirming that serving your old lawyer doesn't count as serving you.
What this practically means
#Executive summary
#Key legal issues
#Whether the orders of November 18, 2021 should be reviewed and set aside
The court held that the plaintiff established sufficient grounds for review because the defendant's application of September 21, 2021 was served on the plaintiff's former advocates (CM Advocates LLP) and not on Litoro & Omwebu Advocates, the advocates then on record, depriving her of a hearing.
The court perused the record and found a Notice of Change of Advocates dated January 22, 2019 and filed February 18, 2019. The affidavit of service by Basil Malela showed service of the set-aside application on CM Advocates LLP. Since the defendant's own Notice of Appointment of Advocates had been served on Litoro & Omwebu, service on the former firm was ineffective, constituting a sufficient reason for review under Order 45.
What constitutes a sufficient reason for review
Applying Shanzu Investments and Wangechi Kimita, 'any other sufficient reason' need not be analogous to the other grounds in Order 45; the discretion to review is unfettered.
The court adopted the Court of Appeal's approval of Wangechi Kimita v Mutahi Wakabiru, holding that restricting the residual ground to grounds analogous with the enumerated ones would be a clog on the unfettered right given by section 80 of the Civil Procedure Act.
Legal principles established
#- The grounds for review under section 80 CPA and Order 45 are discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay.
- 'Any other sufficient reason' for review need not be analogous with the other enumerated grounds; the court has an unfettered discretion to review its own decrees or orders for any sufficient reason.
- A party is not served where process is served on its former rather than its current advocates on record, and such failure of service is a sufficient reason for review.
Court orders
#- 1.The ruling and order of the court delivered on November 18, 2021 and all consequential orders re-opening the suit are reviewed and set aside (prayer 4 granted)
- 2.The plaintiff is granted leave to defend the defendant's Notice of Motion dated September 21, 2021 by way of her Replying Affidavit, and the said application is to be heard and determined on merits (prayer 5 granted)
- 3.The plaintiff's response to the application dated September 21, 2021 is deemed properly filed and served
- 4.The defendant may, if she deems it necessary, file a supplementary affidavit and serve within 14 days
- 5.The application dated September 21, 2021 to be mentioned on April 19, 2023 for further directions
- 6.The plaintiff to, within 7 days, make an application to join the third party (transferee of the suit land) as an interested party and serve the intended third party; that application to be mentioned on March 27, 2023 for directions as to hearing
- 7.Costs of the application to be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A, 63 and 80 of the Civil Procedure Act; sections 3 and 13(7) of the Environment and Land Court Act; Order 12 rule 7 and Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherret v Lapedo", Case Analysis (2023). Environment & Land Case 258 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16136/eng@2023-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.