Igwe General Stores Ltd & 2 others v Board of Trustees, National Social Security Fund & 3 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Threshold for review under Order 45 Rule 1
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
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.
Simultaneous pursuit of review and appeal
A litigant must elect between review and appeal; the two remedies cannot be pursued in the same application
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.
Delay and the doctrine of laches
The seven-month delay in filing the application was unexplained and fatal
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application dated 28th February 2023 be and is hereby dismissed with costs to the Petitioners/Respondents only
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.