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ELCPartially AllowedNot stated in the judgment as extracted· [2024] KEELC 830 (KLR)

Kinyanjui v Mangera & another (Environment & Land Case 1169 of 2013) [2024] KEELC 830 (KLR)

Environment and Land Court
15 February 2024
2,285 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a landowner's counterclaim back on record after review, but she still pays the other side's legal costs.

What this practically means

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Executive summary

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This is a ruling on the 2nd Defendant's notice of motion dated 25th July 2023 seeking review and setting aside of orders made on 3rd July 2023, by which the court struck out the 2nd Defendant's amended defence and counterclaim dated 10th January 2023, filed out of time and without leave. The application was supported by the affidavit of Beatrice Wiria Atieno, who explained that the plaintiff had amended its plaint several times, the last on 18th July 2022, prompting her amended defence and counterclaim. The plaintiff opposed the motion through a preliminary objection arguing res judicata, since counsel's oral application on 3rd July 2023 to admit the counterclaim out of time had been disallowed, and on the merits, contending that the counterclaim introduced new evidence after closure of the plaintiff's case. The court held that section 80 of the Civil Procedure Act and Order 45(1) preserve the remedy of review even for a party with a right of appeal, so the res judicata objection did not lie. On sufficiency of cause, the court found the delay in filing reasonable given the Order 51 vacation period, identified two errors (non-service and filing a counterclaim without leave), but noted the counterclaim raised no new cause of action and that the judge had not reviewed its contents when striking it out. The court allowed prayers (c) and (d), setting aside the 3rd July 2023 orders and deeming the defence and counterclaim properly on record, with costs of the application to the Plaintiff/Respondent. Judgment was delivered at Nairobi on 15th February 2024 by A. Omollo, Judge.

Key legal issues

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01

Whether the application for review offends res judicata given the disallowed oral application of 3rd July 2023

Holding

The preliminary objection fails because Order 45(1) permits a party aggrieved by an order from which no appeal has been preferred, or from which no appeal is allowed, to seek review; the remedy remains open notwithstanding the earlier disallowed oral application.

Reasoning

The court reasoned that Order 45(1), mirrored in section 80 of the Civil Procedure Act, allows a party who has the option to appeal to instead move the court for review. Since the statutory avenue for review exists, the plaintiff's objection that the matter is res judicata and should proceed by appeal does not lie.

p. 3
02

Whether sufficient cause was demonstrated to review and set aside the orders of 3rd July 2023 striking out the counterclaim

Holding

Yes. The delay in filing the amended defence was reasonable given Order 51 vacation periods, and the striking out resulted from two errors - non-service and filing a counterclaim without leave - while the counterclaim raised no new cause of action; the judge also lacked the benefit of the counterclaim's contents when making the earlier order.

Reasoning

The court found the delay reasonable once the Order 51 vacation period (21st December to 14th January) was excluded. Two mistakes by the applicant - failure to serve the amended pleadings and filing a counterclaim without leave - led to the striking out. However, the counterclaim disclosed no new cause of action requiring recall of the plaintiff, and on 3rd July 2023 the court had not examined the counterclaim's contents or prior proceedings. Both parties should be heard before judgment.

p. 4

Legal principles established

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  • A review may be granted whenever the court considers it necessary to correct an apparent error or omission on the part of the court, provided the error is self-evident.
  • A party who has the option to appeal may still move the court for review under section 80 of the Civil Procedure Act and Order 45; the remedy is not barred as res judicata merely because an oral application was disallowed.

Court orders

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  1. 1.The orders made by the court on 3rd July 2023 are reviewed and set aside
  2. 2.The 2nd Defendant's defence and counterclaim dated 10th January 2023, filed out of time and without leave, is deemed properly on record
  3. 3.Costs of the application awarded to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure ActSection 100
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Rules, 2010Order 8 Rule 1
  • Civil Procedure Rules, 2010Order 8 Rule 5(1)
  • Civil Procedure Rules, 2010Order 51

Cases cited (9)

  • Shanzu Investments Limited v Commissioner for Lands
    Civil Appeal No 100 of 1993
  • Patrick's Hill School Ltd v Bank of Africa Kenya Ltd
    (2018) eKLR
  • K K Lodgit Limited v Geminia Insurance Company Ltd & Another
    [2021] eKLR
  • Ocean Foods Limited v Osotpa Company Limited & 2 Others
    (2020) eKLR
  • Nicholas Nieru v The Attorney General and 8 Others
    Civil Appeal No. 110 of 2011 [2013] eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff)
    [2022] eKLR
  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • National Bank of Kenya Limited v Ndungu Njau
    [1997] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010

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, "Kinyanjui v Mangera & another (Environment & Land Case 1169 of 2013) [2024] KEELC 830 (KLR)", Case Analysis (2024). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/830/eng@2024-02-15

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