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ELCDismissedNot stated in the judgment text· [2024] KEELC 3597 (KLR)

Notice of Motion dated 10th May 2023 by the 1st Defendant/Applicant (Application for Review of Dismissal Orders of 2nd February 2023)

Environment and Land Court
29 April 2024
2,294 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 dismissed a review bid, ruling that blaming a sick lawyer without evidence—and a three-month delay—doesn't revive a dismissed case.

What this practically means

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Executive summary

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By a notice of motion dated 10th May 2023, the 1st defendant sought review and setting aside of dismissal orders issued on 2nd February 2023, by which the court had dismissed his earlier application (seeking stay of the judgment of 21st September 2018 and partial review to allow him to participate in choosing a surveyor and determining plot locations) for want of prosecution, there being no appearance and no service on the hearing date. The application was supported by the 1st defendant's affidavit explaining that his counsel had been unwell and hospitalised, and that the suit properties, Mavoko Town/Block 2/9246 and 9247, were occupied by purchasers with permanent houses. The 4th defendant, Danson Mworia Njihia, opposed the application, arguing inordinate and unexplained delay of over three months, that the supporting affidavit was sworn by a stranger to the suit, that the title was registered in his and co-owners' names pursuant to court process in Milimani CMCC No. 11556 of 2003, that a new title deed had issued, and that litigation must come to an end. In a ruling delivered virtually at Machakos on 29th April 2024, Nyukuri J framed a single issue: whether the applicants met the threshold for review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The court held that counsel's illness was neither new and important matter nor error apparent on the record, and that no evidence of indisposition or of the litigants' own efforts to mitigate was presented; the three-month delay was unexplained; and since the applicants had participated in the original suit and the property was registered in the 4th defendant's name, reinstatement would serve no purpose. The application was dismissed with no order as to costs.

Key legal issues

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01

Whether the illness and hospitalisation of the applicants' counsel constitutes sufficient cause for review of the dismissal order of 2nd February 2023

Holding

It does not; counsel's illness does not amount to discovery of new evidence or an error apparent on the face of the record, and no evidence of the illness or of the applicants' own diligence was adduced

Reasoning

The court found that the reason given did not fit any ground under section 80 and Order 45 Rule 1. No evidence supported the allegation that counsel was hospitalised. The applicants also did not explain why they waited more than three months after the dismissal to file the review application, when the delay itself required explanation.

p. 4
02

Whether the delay of more than three months in bringing the review application was excusable

Holding

The delay was not explained and was inexcusable; the litigant, not only the advocate, bears responsibility for prosecuting the case

Reasoning

The dismissal arose from non-attendance and non-service on 2nd February 2023. The review was filed on 10th May 2023. Although counsel's indisposition was mentioned, no evidence was presented, and the applicants gave no reason for the three-month delay. The court applied the principle that litigants must show their own efforts to mitigate their advocate's failures.

p. 5
03

Whether setting aside the dismissal orders would serve any useful purpose given the state of the title to the suit properties

Holding

It would not; the suit property was already registered in the 4th defendant's name with co-owners pursuant to court process, and the applicants had participated in the original suit

Reasoning

The court noted that the applicants filed a defence and participated in the suit leading to the 2018 judgment, sought review only four years later in 2022, and the title was registered in the respondent's and co-owners' names on 25th April 2019. Reinstating the dismissed application would therefore not achieve any meaningful purpose.

p. 5

Legal principles established

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  • To merit an order of review, an applicant must show discovery of new and important evidence, an error apparent on the face of the record, or sufficient cause, and must apply without unreasonable delay
  • A case belongs to the litigant and not the advocate; a litigant blaming counsel's inaction must demonstrate efforts taken to mitigate the advocate's failings

Court orders

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  1. 1.The application dated 10th May 2023 is dismissed with no order as to costs
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction of the court over its own orders)

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, "Notice of Motion dated 10th May 2023 by the 1st Defendant/Applicant (Application for Review of Dismissal Orders of 2nd February 2023)", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3597/eng@2024-04-29

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