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ELCDismissedELC Case, Kitale (Notice of Motion dated 28/09/2023)· [2024] KEELC 63 (KLR)

Reuben v Ngiroo & another (Environment & Land Case 75 of 2015) [2024] KEELC 63 (KLR)

Environment and Land Court
22 January 2024
3,174 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a Notice of Motion dated 28/09/2023 brought under Article 50 of the Constitution and Orders 9, 45, 50 and 51 of the Civil Procedure Rules, the applicants sought leave for new advocates to come on record, review of the ruling and order of 26 January 2021, and enlargement of time to comply with the condition for deposit of security for costs imposed when stay of execution pending appeal was granted. They blamed a failure of communication with their former advocates during the Covid-19 pandemic, asserting they only learned of the ruling's conditions in September 2023 when eviction was commenced, and relied on their right to a fair hearing and the pendency of an appeal in the Court of Appeal (Eldoret Appeal No. 41/2020). The respondent opposed, arguing abuse of process, inordinate delay of over two years, and that the applicants had been informed of the conditions by their former advocates. The court framed two issues: whether the application was merited and who should bear costs. It restated the grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 - discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason - plus the requirement to apply without unreasonable delay. The court held the delay inordinate and unexplained: the Bill of Costs had been taxed inter partes in July 2021 with counsel attending, and a handwritten summary on the ruling showed the applicants had been told of the deposit and fees conditions. The alleged miscommunication was assumption, not fact, unsupported by any affidavit from previous counsel. Nor was any other review ground averred. The extension-of-time prayer equally failed. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the application for review of the conditional ruling of 26/01/2021 was merited

Holding

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

Reasoning

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.

p. 5
02

Whether the alleged mistake of learned counsel justified review

Holding

No mistake by counsel was established; the applicants deponed to assumptions, not facts, and produced no affidavit from previous counsel

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The application dated 28/09/2023 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 95
  • Civil Procedure Rules, 2010Order 9 Rule 9
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Rules, 2010Order 50 Rule 6
  • Civil Procedure Rules, 2010Order 51

Cases cited (4)

  • Patriotic Guards Limited vs. Kipchirchir Sambu
    Nairobi Civil Application No. 240 of 2016
  • Jaber Mohsen Ali & Another vs. Priscillah Boit & Another
    E&L No. 200 of 2012 [2014] eKLR
  • Vincent Narisia Krop & 3 others v Martin Semero Limakou & 12 others
    [2021] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR, Judicial Review Division Misc. Application No. 317 of 2018
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

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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, "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.