Reuben v Ngiroo & another (Environment & Land Case 75 of 2015) [2024] KEELC 63 (KLR)
The bottom line
#The Environment and Land Court in Kitale dismissed applicants' attempt to review a 2021 ruling, ruling that blaming Covid-19 delays and counsel miscommunication was not enough.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for review of the conditional ruling of 26/01/2021 was merited
The application was not merited; no ground for review under Section 80 and Order 45 Rule 1 was established and the application was brought after inordinate, unexplained delay
The court set out the three limbs of Order 45 Rule 1 plus the requirement of no unreasonable delay. The applicants claimed ignorance of the ruling's conditions until September 2023 and blamed counsel miscommunication due to Covid-19. The court found the taxation of the Bill of Costs in July 2021 showed counsel was in contact with clients, a handwritten summary on the ruling showed applicants were informed of the conditions, and no affidavit from previous counsel supported the alleged miscommunication. The delay was inordinate and unexplained and no review ground was made out.
Whether the alleged mistake of learned counsel justified review
No mistake by counsel was established; the applicants deponed to assumptions, not facts, and produced no affidavit from previous counsel
The court accepted that counsel error can in some instances excuse a mistake, but the error must be clearly demonstrated or admitted on oath by counsel. Here the deponent merely assumed miscommunication and attributed it to Covid-19 conditions as a possibility rather than a fact. Without an affidavit from the former advocates, the court declined to find that a mistake had occurred.
Legal principles established
#- An applicant for review must establish the grounds in Order 45 Rule 1 and that the application was made without unreasonable delay, with any delay sufficiently explained
- A party alleging mistake by learned counsel must demonstrate the error or secure an admission on oath from counsel; allegations by the client alone are insufficient
- Equity aids the vigilant; inordinate unexplained delay in seeking review is fatal
Court orders
#- 1.The application dated 28/09/2023 is dismissed with costs to the Respondent
- Jurisdiction invoked
- Article 50 of the Constitution; Order 45 Rule 1, Order 9 Rule 9, Order 50 Rule 6 and Order 51 of the Civil Procedure Rules, 2010; Section 95 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuben v Ngiroo & another (Environment & Land Case 75 of 2015) [2024] KEELC 63 (KLR)", Case Analysis (2024). ELC Case, Kitale (Notice of Motion dated 28/09/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/63/eng@2024-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.