Kiriwa & another (Suing on their own behalf) v Misoi & others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application for review under Section 80 of the Civil Procedure Act and Order 45 rule 1 was merited
The application failed: it was brought with undue delay, unexplained, and no error apparent on the record or sufficient reason was shown
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.
Whether the death of the 4th Defendant was a sufficient reason to set aside the orders of 27/10/2021
No; the claim against the deceased did not survive his death and abated, so his death could not justify review
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.
Whether the Amended Plaint was properly on record and the 7th-9th Defendants properly enjoined
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
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
#- 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
#- 1.The Notice of Motion dated 18/11/2022 is dismissed
- 2.Costs shall be to the Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.