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ELCDismissedEnvironment & Land Petition E008 of 2020· [2023] KEELC 18243 (KLR)

Igwe General Stores Ltd & 2 others v Board of Trustees, National Social Security Fund & 3 others

Environment and Land Court of Kenya
16 June 2023
5,073 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 1st Respondent, the Board of Trustees of the National Social Security Fund, moved the court by Notice of Motion dated 28th February 2023 seeking stay of execution of the judgment and decree of 28th July 2022, review or setting aside of that judgment with leave to file submissions, and alternatively leave to appeal out of time. It claimed it was denied the opportunity to file written submissions and attributed the omission to mistake by counsel. The Petitioners opposed, contending the Applicant attended directions, undertook to file submissions, was served with all parties' submissions and received e-platform alerts, and that review and appeal cannot be pursued together. The court framed three issues: the threshold for review, whether review and appeal can be pursued simultaneously, and delay/laches. It held the Applicant neither identified nor proved any Order 45 Rule 1 ground, and had abandoned review in submissions in favour of setting-aside arguments applicable only to default judgments. It further held a litigant must elect between review and appeal, and that the court lacked mandate to extend time for filing an appeal where no leave to file a Notice of Appeal was sought. The seven-month delay was unexplained and uncontroverted e-platform notifications showed the Applicant knew of the judgment; the application was defeated by laches. The application was dismissed with costs to the Petitioners/Respondents only.

Key legal issues

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01

Threshold for review under Order 45 Rule 1

Holding

The Applicant failed to identify or demonstrate any of the three grounds for review and instead argued the case as if seeking to set aside a default judgment

Reasoning

The court held that review is restricted to the statutory parameters of Order 45 Rule 1: discovery of new and important evidence, error apparent on the face of the record, or any other sufficient reason. The Applicant neither identified a ground in the application nor the supporting affidavit, and in submissions abandoned review in favour of setting-aside arguments applicable only to default judgments. Authorities confirm not every mistake excuses review.

p. 5
02

Simultaneous pursuit of review and appeal

Holding

A litigant must elect between review and appeal; the two remedies cannot be pursued in the same application

Reasoning

Relying on Order 45 rule 2 and the Mary Wamboi Njuguna decision, the court held that having opted for review, the Applicant effectively abandoned the option of appeal. Further, the court's jurisdiction to extend time is limited to leave to file a Notice of Appeal under Section 7 of the Appellate Jurisdiction Act, and the Applicant never sought that specific relief.

p. 8
03

Delay and the doctrine of laches

Holding

The seven-month delay in filing the application was unexplained and fatal

Reasoning

Judgment was delivered on 28th July 2022 but the application was filed on 28th February 2023. The Applicant claimed ignorance of the judgment, but the Petitioners showed all parties received e-filing platform alerts, which the Applicant did not controvert by supplementary affidavit. The supporting affidavit disclosed no steps taken, evidencing indolence, lethargy and apathy.

p. 10

Legal principles established

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  • An applicant for review must identify and prove one of the grounds in Order 45 Rule 1; a general plea of mistake of counsel does not suffice
  • A party cannot pursue review and appeal against the same decision contemporaneously; an election must be made
  • An application for review made after inordinate and unexplained delay is defeated by the doctrine of laches

Court orders

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  1. 1.The Notice of Motion application dated 28th February 2023 be and is hereby dismissed with costs to the Petitioners/Respondents only

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 45 rule 2
  • Civil Procedure CodeSection 80
  • Appellate Jurisdiction ActSection 7

Cases cited (12)

  • Shah versus Mbogo
    (1969) EA 116

    Circumstances in which an ex-parte/default judgment can be varied or set aside

  • Jese Kimani versus Macconel
    (1966) EA 547

    Setting aside of default judgments

  • Elizabeth Kavere & Another versus Lilian Atho & Another
    (2020) eKLR

    Setting aside of default judgments

  • James Kanyita Nderitu & Another versus Marios Philotas Gikas & Another
    (2016) eKLR

    Mistake of counsel in setting aside default judgments

  • Owino Ger v Marmanet Forest Cooperative Credit Society
    (1987) eKLR
  • CFC Stanbic Ltd versus John Maina Githaiga & Another
    (2013) eKLR
  • Otieno Ragot & Company Advocates versus National Bank of Kenya Ltd
    (2020) eKLR

    Order 45 rule 1 does not excuse every error or mistake, even if inadvertent

  • Francis Njoroge versus Stephen Maina Kamore
    (2018) eKLR

    Grounds that must be established for review

  • Daniel Toroitich Arap Moi versus Mwangi Stephen Muriithi & Another
    (2014) eKLR

    Grounds that must be established for review

  • Mary Wamboi Njuguna versus William Olei Nabala & 9 Others
    (2018) eKLR

    A party cannot pursue review and appeal against the same decision simultaneously

  • Stephen Gathua Kimani versus Nancy Wanjira Waruingi t/a Providence Auctioneers
    [2019] eKLR

    Review is restricted to the parameters set out in Order 45 Rule 1

  • Republic versus Advocates Disciplinary Tribunal Ex-parte Apollo Mboya
    (2019) eKLR

    Principles governing review under Section 80 CPC and Order 45 Rule 1

Jurisdiction invoked
Inherent jurisdiction to review own judgment under Order 45 Rule 1 of the Civil Procedure Rules, 2010; Section 7 of the Appellate Jurisdiction Act (Cap 9) considered on the leave-to-appeal prayer

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, "Igwe General Stores Ltd & 2 others v Board of Trustees, National Social Security Fund & 3 others", Case Analysis (2023). Environment & Land Petition E008 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18243/eng@2023-06-16

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