Kinyanjui v Mangera & another (Environment & Land Case 1169 of 2013) [2024] KEELC 830 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application for review offends res judicata given the disallowed oral application of 3rd July 2023
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.
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.
Whether sufficient cause was demonstrated to review and set aside the orders of 3rd July 2023 striking out the counterclaim
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.
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.
Legal principles established
#- 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
#- 1.The orders made by the court on 3rd July 2023 are reviewed and set aside
- 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.Costs of the application awarded to the Plaintiff/Respondent
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.