Gachu & another v Ndocha & another (Civil Suit 41 of 2008) [2024] KEELC 5804 (KLR)
The bottom line
#A Kenyan land court refused to re-open a 2008 land case, ruling that believing a suit had lapsed was no excuse for missing a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Motion is barred by res judicata and functus officio given the earlier Motion of 22nd October 2021 and Ruling of 27th April 2023
The plea of res judicata fails; the issues in the two Motions were not identical and the earlier Ruling did not conclusively determine the present issue.
The earlier Motion sought to set aside the proceedings of 4th October 2021 on the ground that the suit had abated and the proceedings were a nullity. The present Motion seeks setting aside and re-opening of the trial on the ground of the Applicant's and his counsel's non-attendance. Applying the five-limb test from Bernard Mugo Ndegwa v James Nderitu Githae, the issue of sufficiency of excuse for non-attendance was never conclusively determined before.
Whether the court should exercise its review jurisdiction under Section 80 CPA and Order 45 Rule 1 to re-open the case
The review prayer is unmerited: no new and important matter, no error apparent on the face of the record, no sufficient cause, and the application was made after inordinate and unexplained delay.
The Applicant's only available ground was 'any other sufficient cause'. His non-attendance was attributable to his counsel's advice that the suit had abated, but counsel took the hearing date without raising that belief, and the belief does not excuse non-attendance. Further, the Motion was filed about two years after the directions sought to be reviewed, or at least five months after the Ruling of 27th April 2023, with no explanation for the delay.
Whether Order 12 Rule 7 and Order 18 Rule 10 of the Civil Procedure Rules apply
Both provisions are inapplicable: no judgment had been entered nor suit dismissed, and Order 18 Rule 10 empowers the court to recall witnesses only on its own motion.
On 4th October 2021 the plaintiffs testified and closed their case and directions on submissions were issued; judgment has yet to be entered and no dismissal order was made, so Order 12 Rule 7 has no application. Order 18 Rule 10 confers power on the court, not on a party, to recall and examine witnesses of its own motion.
Legal principles established
#- Belief, even on counsel's advice, that a suit had abated does not constitute sufficient reason to absent oneself from a hearing date taken in counsel's presence.
- An application for review must be made without unreasonable delay, and unexplained delay is fatal.
- While mistakes of counsel should not ordinarily be visited on a litigant, there must be cogent and credible evidence of the mistake.
Court orders
#- 1.The Notice of Motion dated 10th October, 2023 is dismissed with costs.
- Jurisdiction invoked
- Articles 50(1) and 159(2) of the Constitution; Sections 3, 3A and 80 Civil Procedure Act; Order 12 Rule 7, Order 17 Rule 3, Order 18 Rule 10 and Order 45 Rule 1 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gachu & another v Ndocha & another (Civil Suit 41 of 2008) [2024] KEELC 5804 (KLR)", Case Analysis (2024). Civil Suit No 41 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5804/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.