Mathenge v Githinji (Environment & Land Case 52 of 2017) [2024] KEELC 908 (KLR)
The bottom line
#Kenya's High Court reinstated a dismissed case application after counsel lost internet during a virtual hearing, confirming connectivity failures justify review.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the Application dated 21/7/2023 for non-attendance should be reviewed
Yes. The grounds of discovery of new evidence and error apparent on the face of the record failed, but the Court found the explanation for non-attendance (internet connectivity failure) to be a sufficient reason to vacate the dismissal orders.
The Court noted that the Applicant confused his own Motions: what was heard on 17/10/2023 was the Application dated 21/7/2023, so the claimed error apparent on the face of the record did not exist, and no new evidence was strictly proved. However, invoking the inherent powers under Sections 3 and 3A of the Civil Procedure Act and Articles 48 and 159 of the Constitution, the Court accepted that virtual platforms can suffer downtime and, in the absence of any contrary objection, found the counsel's explanation plausible and exercised its discretion to review for sufficient reason.
Legal principles established
#- Review may be granted for any other sufficient reason, which need not be analogous to the other grounds in Order 45, as Section 80 gives the Court an unfettered discretion to review its own decrees or orders.
- Review cannot be used as a vehicle for a fresh hearing or to correct an erroneous view; it lies only for patent error, new matter discovered with due diligence, or a reason analogous to the specified grounds.
- An application for review founded on discovery of new and important evidence requires strict proof of that allegation.
Court orders
#- 1.Orders of the Court issued on 17/10/2023 vacated
- 2.Application dated 21/7/2023 reinstated for hearing on merit
- 3.Costs of the Application to abide the outcome of the suit
- Jurisdiction invoked
- Sections 80, 3 and 3A Civil Procedure Act; Order 45 Civil Procedure Rules; Articles 48 and 159 Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mathenge v Githinji (Environment & Land Case 52 of 2017) [2024] KEELC 908 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/908/eng@2024-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.