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ELCDismissedELC Case No. E007 OF 2023· [2024] KEELC 4568 (KLR)

Mumbo (Being the representative of Jamhuri Jua Kali Investment Group) v Khakame; Registrar (Interested Party) (Environment & Land Case E007 of 2023) [2024] KEELC 4568 (KLR)

Environment and Land Court
10 June 2024
3,251 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a counterclaim survives even when the main case is dismissed, and being quick to file a review is not enough.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Mogeni J) determined two contested applications arising after the plaintiff's suit in ELC Case No. E007 OF 2023 was dismissed for want of prosecution on 13/02/2024, with the court proceeding to hear the defendant's counterclaim. The plaintiff, Kevin Seda, sought review under Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act, contending his counsel waited online for a virtual hearing until about 13hrs on the hearing date, only to discover on the portal that judgment had been set for 14/03/2024 without him being heard. The defendant, Caroline Khakame, opposed, showing that the plaintiff took the hearing date ex parte, was served with a hearing notice, did not request a virtual platform, and was twice called without appearance. The court applied Order 45 Rule 1 and Section 35 of the Limitation of Actions Act, holding that a counterclaim is a separate, independent action which survives dismissal of the plaintiff's suit. Finding no new evidence, no error apparent on the face of the record and no sufficient reason - mere promptitude in filing being insufficient - the court dismissed the plaintiff's application with costs. The Intended 2nd Defendant, Franklin Kamathi, sought joinder under Order 1 Rule 10(2), directions from the Presiding Judge, and in the alternative reopening of the suit. The court held there was no subsisting suit in which he could be joined, and that his application was spent given the pending related suit, ELC Case No. E044 OF 2022. Both applications were dismissed with costs.

Key legal issues

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01

Whether the judgment date on the counterclaim could be set aside on review

Holding

The review application failed; dismissal of the plaintiff's suit was proper and no review ground was met

Reasoning

The court examined Order 45 Rule 1 grounds and found no new evidence, no error apparent on the face of the record and no sufficient reason. The plaintiff's counsel took the hearing date ex parte on 29/01/2024, was served with a hearing notice, and did not request a virtual hearing despite waiting online until 13hrs. Prompt filing alone (about four working days) does not establish a review ground.

02

Whether the counterclaim survives the dismissal of the plaintiff's suit

Holding

Yes - the counterclaim is independent of the suit and may proceed

Reasoning

Relying on Order 7 Rule 13 of the Civil Procedure Rules and Section 35 of the Limitation of Actions Act, the court held that a counterclaim is treated as a separate action. Where the plaintiff's suit is stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with; its survival is not pegged on the primary suit.

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Whether the intended 2nd Defendant could be joined and the suit reopened

Holding

No - there is no subsisting suit for joinder and the application was spent

Reasoning

Since the plaintiff's suit remains dismissed and no reinstatement application exists, there is no suit into which the intended 2nd Defendant could be joined. Further, the Defendant and the intended 2nd Defendant already have a pending suit between themselves, ELC Case No. E044 OF 2022, rendering the joinder application spent.

p. 7

Legal principles established

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  • A counterclaim is a separate and independent action that survives the dismissal of the plaintiff's suit
  • Review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 requires discovery of new matter, error apparent on the face of the record, or other sufficient reason, plus no unreasonable delay

Court orders

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  1. 1.The Plaintiff's Application dated 15/02/2024 is dismissed with costs to the Defendant.
  2. 2.The Intended 2nd Defendant's Application dated 28/02/2024 is dismissed with costs.
Jurisdiction invoked
Order 51 Rules 1 and 11, Order 45 Rule 1 and Order 1 Rule 10(2) of the Civil Procedure Rules; Sections 1A, 1B, 3A and 80 of the Civil Procedure Act

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, "Mumbo (Being the representative of Jamhuri Jua Kali Investment Group) v Khakame; Registrar (Interested Party) (Environment & Land Case E007 of 2023) [2024] KEELC 4568 (KLR)", Case Analysis (2024). ELC Case No. E007 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4568/eng@2024-06-10

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