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ELCDismissedEnvironment & Land Case 104 of 2010· [2023] KEELC 21633 (KLR)

Kiriwa & another (Suing on their own behalf) v Misoi & others

Environment and Land Court of Kenya
17 November 2023
4,791 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a land dispute review application filed over a year late with no explanation, warning that unhappy parties should appeal instead.

What this practically means

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Executive summary

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The plaintiffs in a long-running land suit (concerning subdivision of LR Nos 6431, 5713 and 8416 per a 1990 Land Control Board consent and 1989 Area List) moved the Court by Notice of Motion dated 18/11/2022 under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Article 159(2)(d) of the Constitution and Order 45 rule 1, seeking review of the ruling and orders of 27th October 2021, under which the Amended Plaint dated 2/7/2020 and filed 2/12/2020 was struck out as improperly on record, effectively removing the 7th-9th Defendants. The applicants argued counsel's inadvertent delay due to e-filing payment failures, service on the defendants, estoppel by the defendants' participation, and the death of the 4th Defendant. The respondents opposed, citing inordinate delay, absence of error apparent, and the availability of appeal. Nyagaka J framed two issues: merit and costs. The Court applied Section 80 and Order 45 rule 1, adopting the principles in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya. It found the application filed one year and twenty days late with no explanation, no error or mistake apparent on the record, and no sufficient reason; dissatisfaction was a ground of appeal, not review. The Court further held the claim against the deceased 4th Defendant abated on his death, and that the Amended Plaint, filed after even the extended time, was a nullity incapable of enjoining the 7th-9th Defendants. The application was dismissed with costs to the respondents, and the matter set for mention on 5th December 2023.

Key legal issues

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01

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

Holding

The application failed: it was brought with undue delay, unexplained, and no error apparent on the record or sufficient reason was shown

Reasoning

The court restated the review grounds: discovery of new matter, error apparent on the face of the record, or any other sufficient reason, plus absence of undue delay. The applicants took one year and twenty days with no explanation, offered no evidence of error, and their grievance was properly a ground of appeal. The e-filing system failure claim was unsupported by evidence from the system administrator.

p. 8
02

Whether the death of the 4th Defendant was a sufficient reason to set aside the orders of 27/10/2021

Holding

No; the claim against the deceased did not survive his death and abated, so his death could not justify review

Reasoning

The reliefs against the deceased were declarations and an injunction concerning subdivision of the suit lands, and he was sued simply as a person allegedly insisting on subdivision into 583 portions. The court held such a claim could not survive his demise and abated on death, so the applicants' reliance on the death as a sufficient reason for review failed.

p. 7
03

Whether the Amended Plaint was properly on record and the 7th-9th Defendants properly enjoined

Holding

No; the Amended Plaint was filed after the extended time had expired and was a nullity, so service of it could not enjoin the 7th-9th Defendants

Reasoning

Counsel admitted on oath that no Amended Plaint was on record when extension of time was sought; the extension was granted over nothing, and the document was filed even after that extension expired. What was served was therefore a nullity which no party was bound to respond to, and the 7th-9th Defendants could not be deemed enjoined through it.

Legal principles established

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  • An application for review must be brought without unreasonable delay; where delay is unexplained the court will dismiss it irrespective of merits
  • A party aggrieved by a court order should appeal rather than seek review where no review ground exists
  • A cause of action against a defendant merely alleged to be insisting on unlawful subdivision does not survive his death and abates

Court orders

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  1. 1.The Notice of Motion dated 18/11/2022 is dismissed
  2. 2.Costs shall be to the Respondents
  3. 3.The matter shall be mentioned on 5th December, 2023 for confirmation as to compliance and fixing of a hearing date
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 45 rule 1 and Order 51 rule 1 of the Civil Procedure Rules, 2010; Article 159(2)(d) of the Constitution

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, "Kiriwa & another (Suing on their own behalf) v Misoi & others", Case Analysis (2023). Environment & Land Case 104 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21633/eng@2023-11-17

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