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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the threshold for review of the orders of 17/10/2023 was met
The plaintiff did not meet the threshold; no ground for review was established and the relief was misconceived and bad in law.
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.
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
Yes; the dismissal order was set aside and vacated and the further amended OS and supporting affidavit deemed properly filed and served.
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.
Whether failure to attach the order subject to review is fatal
No; Order 45 (1) does not expressly require annexure of the order or decree to a review application.
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.
Legal principles established
#- 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
#- 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.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.Within 14 days hereof, parties are to file and serve an indexed and paginated trial bundle.
- 4.Matter to be mentioned for purposes of issuance of a hearing date on 24/09/2024.
- 5.Costs shall be in the cause.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.