Karanja (Suing as the Representative of the Estate of David Karanja Ng’ang’a) v Kiboinet t/a Sweetland Consultant Limited & 2 others (Environment & Land Case 45B of 2021) [2024] KEELC 3654 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff was afforded sufficient opportunity to be heard
The Plaintiff and his Counsel were aware of the hearing date taken in court by their own Counsel and failed to attend; the court properly proceeded ex parte under Order 12 of the Civil Procedure Rules
The record showed Counsel for the Plaintiff herself took the hearing date of 25th October, 2022 in court on 2nd June, 2022 before Justice Obaga, who directed the application be heard in ELC Court 2. Her claim of being stranded online awaiting virtual proceedings in Court 1 was unproved, and her admission that she had asked a colleague to hold her brief contradicted the claim of non-service. Filing submissions was not mandatory as no directions for written submissions had been issued; submissions are not evidence and their absence does not prejudice a party.
Whether failure to attach the order/ruling sought to be reviewened renders the application fatally defective
No. There is no express requirement under Order 45 to annex the order; the requirement arose from practice and is curable under Article 159(2)(d) where the ruling is on the court file and unambiguous
The court followed the Court of Appeal in Peter Kirika Githaiga v Betty Rashid, holding that where a party can direct the court's attention to the part of the ruling complained of, and the ruling is on the court file, the application for review is not fatally defective. The Applicant had clearly indicated the delivery date of the ruling and there was no ambiguity as to the order complained of.
Whether the Plaintiff established a basis for review under Section 80 CPC and Order 45 Rule 1
No. No error apparent on the face of the record was shown, and the application was made after an unexplained delay of seven months
The impugned ruling showed the court took a 'considered view' of all matters including the Replying Affidavit; disagreement with that discretion is a matter of appeal, not review. A coram error as to representation would not affect the outcome. Further, there is no requirement to obtain leave to apply for review, so the delay from 25th October, 2022 to 25th June, 2023 was unexplained, contrary to Order 45 Rule 1(1)(b). Order 42 Rule 23 on re-hearing of appeals was inapplicable as this was not an appeal.
Legal principles established
#- A party must be given a reasonable opportunity of being heard; once the opportunity is given and not utilised, the party can only be heard on why they did not utilise it
- Failure to annex the order sought to be reviewed is not fatal where the applicant directs the court's attention to the part of the ruling complained of and the ruling is on the court file
- An error apparent on the face of the record must be self-evident and not require elaborate argument; a review cannot be used to invite a court to sit in appeal of its own decision
- An application for review must be made without unreasonable delay; there is no legal or procedural requirement to obtain leave of court before applying for review
Court orders
#- 1.The Plaintiff's application dated 25th June, 2023 is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (matter transferred from the High Court for want of jurisdiction); application brought under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hayombe v Kenya Water Institute (Employment and Labour Relations Cause E151 of 2022) [2025] KEELRC 2423 (KLR)[2025] KEELRC 2423 (KLR)4 Sept 2025
- Gichuki v Gichuki & 3 others (Environment & Land Case E020 of 2022) [2024] KEELC 6565 (KLR)[2024] KEELC 6565 (KLR)9 Oct 2024applied
Cite this brief
#Cite this brief
Caselaw, "Karanja (Suing as the Representative of the Estate of David Karanja Ng’ang’a) v Kiboinet t/a Sweetland Consultant Limited & 2 others (Environment & Land Case 45B of 2021) [2024] KEELC 3654 (KLR)", Case Analysis (2024). ELC Case (Eldoret), Notice of Motion dated 25th June, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3654/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.