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ELCPartially AllowedNot stated in the judgment excerpt· [2024] KEELC 4376 (KLR)

Otundo (Suing on his behalf and in his capacity as the personal representatives of the Estate of the Late Agnes Ogola - Deceased) v Otundo & 2 others (Environment & Land Case 20 of 2021) [2024] KEELC 4376 (KLR)

Environment and Land Court
30 May 2024
2,950 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Siaya Environment and Land Court revived a land suit it had dismissed, confirming courts will reinstate cases when a defendant sells disputed land while litigation is ongoing.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Siaya (A. Y. Koross, J) on the plaintiff's notice of motion dated 20/11/2023 seeking review, setting aside and variation of orders issued on 17/10/2023, reinstatement of the suit against the 2nd and 3rd defendants, and deeming of the further amended originating summons and supporting affidavit as properly filed and served. The orders of 17/10/2023 had dismissed the suit against the 2nd and 3rd defendants for the plaintiff's failure to effect and prove service. The 1st defendant opposed the motion through grounds of opposition and submissions, arguing lack of jurisdiction, failure to meet the review threshold under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, and that failure to annex the order under review was fatal. The court framed three issues. On review, it applied Section 80 and Order 45 Rule 1 and the National Bank of Kenya v Ndungu Njau standard, holding no ground for review was disclosed. It also held, following Peter Kirika Githaiga v Betty Rashid, that the rules do not require annexure of the order to a review application. However, invoking Order 17 (2) (6), the overriding objective, and the 1st defendant's alleged sale of the suit property in violation of lis pendens, the court set aside the dismissal order, deemed the further amended OS and supporting affidavit properly filed and served, and directed filing of trial bundles with a mention on 24/09/2024. Costs were left in the cause.

Key legal issues

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01

Whether the threshold for review of the orders of 17/10/2023 was met

Holding

The plaintiff did not meet the threshold; no ground for review was established and the relief was misconceived and bad in law.

Reasoning

Section 80 of the Civil Procedure Act and Order 45 Rule 1 require proof of discovery of new and important matter, mistake or sufficient cause. Applying National Bank of Kenya v Ndungu Njau, an error for review must be self-evident. The court examined the motion's grounds and affidavit and found no ground warranting review of the 17/10/2023 directions.

p. 5
02

Whether the court should set aside its dismissal order, reinstate the suit against the 2nd and 3rd defendants, and deem the further amended OS properly filed and served

Holding

Yes; the dismissal order was set aside and vacated and the further amended OS and supporting affidavit deemed properly filed and served.

Reasoning

Order 17 (2) (6) empowers the court to set aside its dismissal on just terms. Although the plaintiff had been lethargic, the 1st defendant had allegedly sold the suit property in violation of lis pendens, contributing to the circumstances. The overriding objective of preventing injustice justified sustaining the suit against the alleged current registered owners.

p. 6
03

Whether failure to attach the order subject to review is fatal

Holding

No; Order 45 (1) does not expressly require annexure of the order or decree to a review application.

Reasoning

Following the Court of Appeal decision in Peter Kirika Githaiga & another v Betty Rashid, which considered Suleiman Murunga, the court held the 1st defendant's objection misplaced since the rules do not expressly mandate annexing the order. The court also found none of the prayers ambiguous.

p. 3

Legal principles established

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  • A review requires an applicant to establish one of the grounds in Order 45 Rule 1 (new and important matter, mistake or error apparent on the face of the record, or sufficient reason), which must be proved by the applicant.
  • Order 45 (1) of the Civil Procedure Rules does not expressly require an order or decree to be annexed to an application for review; failure to annex it is not fatal.
  • A court may set aside its own dismissal of a suit under Order 17 (2) (6) of the Civil Procedure Rules upon being moved by a party, on such terms as may be just, guided by the overriding objective.

Court orders

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  1. 1.The order granted herein on 17/10/2023 dismissing the plaintiff's suit against the 2nd and 3rd defendants is hereby set aside and vacated.
  2. 2.The further amended originating summons dated 8/10/2023 and the plaintiff's supporting affidavit deposed on 8/08/2023 are deemed as properly filed and served.
  3. 3.Within 14 days hereof, parties are to file and serve an indexed and paginated trial bundle.
  4. 4.Matter to be mentioned for purposes of issuance of a hearing date on 24/09/2024.
  5. 5.Costs shall be in the cause.

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3, 3A, 80, 95
  • Civil Procedure RulesOrder 45 Rule 1(1), Order 17 Rule 2(4) and 2(6), Order 50 Rule 6
  • Environment and Land Court ActSection 18
  • ELC Practice Directions (Gazette Notice No. 5178)Direction 43
  • Appellate Jurisdiction ActSections 3A and 3B (as cited within quoted authority)

Cases cited (7)

  • Charles Juma Mulwa v Peter Makau Ndeti and Esther Mbula Makau (Suing on their own behalf and as administrators of the Estate of late Alex Nzomo Muendo)
    [2020] eKLR
  • Harit Sheth T/A Harit Sheth Advocate vs. Shamascharania
    Civil Application No. Nai. 68 of 2008
  • The Pharmacy and Poisons Board v Sipri Pharmaceuticals Limited & the Republic
    Civil Application No. NAI 103 of 1998 (43/98 UR) (unreported)
  • Suleiman Murunga v Nilestar Holdings Limited & Another
    (2015) eKLR
  • Peter Kirika Githaiga & another v Betty Rashid
    [2016] eKLR
  • National Bank of Kenya Limited v Ndungu Njau
    [1997] eKLR
  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commmission & 2 others
    [2013] eKLR
Jurisdiction invoked
Sections 80, 1A, 1B, 3, 3A and 95 of the Civil Procedure Act; Order 45 and Order 17 of the Civil Procedure Rules; Section 18 of the Environment and Land Court Act; Article 159(2)(d) of the Constitution

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, "Otundo (Suing on his behalf and in his capacity as the personal representatives of the Estate of the Late Agnes Ogola - Deceased) v Otundo & 2 others (Environment & Land Case 20 of 2021) [2024] KEELC 4376 (KLR)", Case Analysis (2024). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4376/eng@2024-05-30

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