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ELCPartially AllowedMotion dated May 28, 2019 in a suit filed by Plaint dated 19th June, 2012· [2024] KEELC 6029 (KLR)

Manchester Outfitters Limited & 2 others v Galot Holdings Limited & 3 others (Environment and Land Case Civil Suit 358 of 2012) [2024] KEELC 6029 (KLR)

Environment and Land Court (sitting as the court which passed the orders sought to be reviewed)
19 September 2024
8,928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated a long-running land suit, confirming that dismissed cases can be revived through review even years later.

What this practically means

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Executive summary

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The Plaintiffs applied by Motion dated 28th May 2019 under Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules seeking review and setting aside of the orders of 31st October 2018 dismissing their suit (filed 19th June 2012 over the alleged fraudulent transfer of L.R No 24092) for want of prosecution, and reinstatement of the Plaint. The 4th Defendant filed a preliminary objection contending the suit was statute-barred under the Limitation of Actions Act and that the Court, having dismissed the suit, lacked jurisdiction. The 1st and 3rd Defendants opposed the Motion, arguing the delay was inordinate and unexplained, that the dismissal could only be appealed, and that the directorship dispute in HCCC 55 of 2012 was irrelevant. The court framed three issues: jurisdiction, competence of the Motion, and whether the review threshold was met. It held it had jurisdiction since review is an exception to functus officio and no limitation applies to a review motion; the Motion was competent notwithstanding non-annexure of the ruling; the complaint of error went to the merit of the dismissal and was a matter for appeal; but sufficient reason existed because the directorship dispute in the commercial court had effectively paralysed the suit, the delay of seven months was excused as attributable to counsel and the parties' reasonable belief, and the Defendants would suffer no undue prejudice. The court reviewed and set aside the dismissal orders, reinstated the Plaint, directed priority hearing and made costs costs in the cause.

Key legal issues

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01

Whether the Court has jurisdiction to entertain the review despite functus officio and limitation

Holding

The Court retains jurisdiction; a dismissal of a suit is a final determination but the functus officio doctrine has exceptions covering review, and no limitation period applies to a review motion.

Reasoning

Relying on Mombasa Bricks & Tiles and Silvanus Kizito, the court held that incidental post-judgment processes including review are within a court's powers after final determination. It also held limitation does not bar a review motion since the motion challenges the dismissal order itself, not the substantive suit.

p. 9
02

Whether the failure to annex the order sought to be reviewed is fatal

Holding

Not fatal; Order 45 does not require annexure of the order or ruling sought to be reviewed, it is only a practice convention.

Reasoning

Following Peter Kirika Githaiga v Betty Rashid, the court held that where a party directs the court to the part of the ruling complained of and the decision is on the court file, the application is not fatally defective. The court invoked the oxygen principle under Article 159 of the Constitution.

p. 9
03

Whether error apparent on the face of the record was established

Holding

No; the complaint went to the merit of the dismissal decision, which is a matter for appeal, not review.

Reasoning

The court found the dismissal was made after hearing counsel who had raised the pendency of HCCC 55 of 2012 and the stay application. Re-litigating the correctness of that decision is appealable error, not an error apparent on the face of the record.

p. 13
04

Whether sufficient reason exists to warrant review

Holding

Yes; the pendency of the directorship dispute in HCCC 55 of 2012, which had stayed related matters, plus the delay explanation, constituted sufficient reason and the delay was excused.

Reasoning

The court adopted the non-analogous interpretation of 'sufficient reason'. Given the dispute over the 1st Plaintiff's directorship, locus objections and the stay of related matters, it would have been impossible to proceed; with the directorship resolved, justice required a hearing on the merits with no undue prejudice to Defendants.

Legal principles established

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  • There is no limitation of time as regards a motion to review orders of the Court; the functus officio doctrine does not bar post-judgment incidental processes such as review.
  • A preliminary objection cannot be raised where any fact has to be ascertained or where what is sought is the exercise of judicial discretion.
  • 'Any other sufficient reason' under Order 45 Rule 1 need not be analogous to the other grounds for review.

Court orders

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  1. 1.The Court does hereby review and set aside its orders of 31st October, 2018 dismissing the suit for want of prosecution.
  2. 2.The Plaint dated 19th June, 2012 be and is hereby reinstated.
  3. 3.The matter shall be set out down for hearing on priority basis.
  4. 4.The costs of the application shall be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrder 45 Rules 1 and 3(2), Order 51 Rule 1, Order 17, Order 12 Rule 7
  • Limitation of Actions ActSections 4(2), 4(3), 7
  • Constitution of KenyaArticle 159

Cases cited (30)

  • Mukhisa Biscuits Manufacturing Co. Ltd. v West End Distributors
    [1969] EA 696
  • Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others
    Petition No. 10 of 2013, [2014] eKLR
  • Samuel Macharia & Anor v Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Raila Odinga & Others v IEBC & Others
    [2013] eKLR
  • Mombasa Bricks & Tiles Ltd & 5 Others v Arvind Shah & 7 Others
    [2018] eKLR
  • Telkom Kenya Ltd v John Ochanda
  • Silvanus Kizito v Edith Nkirote Mwiti
    [2021] eKLR
  • Leisure Lodge Ltd v Japhet Asige and another
    [2018] eKLR
  • Ronald Mackenzie v Damaris Kiarie
    [2021] eKLR
  • George Kipyegon Moi v Linet Minagi Mshanka & Another
    [2022] eKLR
  • Peter Kirika Githaiga & Another v Betty Rashid
    [2016] eKLR
  • Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited
    [2014] eKLR
  • Ajit Kumar Rath v State of Orisa & Others
    2 November, 1999
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014] eKLR
  • Kenya Trypanosomiasis Research Institute v Anthony Kabimba Gusinjilu (Suing for and on behalf of 112 Plaintiffs)
    [2019] eKLR
  • Muyodi v Industrial and Commercial Development Corporation & Another
    [2006] 1 EA 243
  • Nyamogo and Nyamogo v Kogo
    [2001] EA 174
  • Apollo Waswa Basude & 2 Others v Nsabwa Ham
    Civil Appeal No 288 of 2016
  • Nasibwa Wakenya Moses v University of Nairobi & Another
    [2019] eKLR
  • Sadar Mohamed v Charan Singh and Another
    [1959] EA 793
  • Evan Bwire v Andrew Nginda
  • Assets Recovery Agency v Charity Wangui Gethi & 3 others
    [2020] eKLR
  • Kuria v Shah
    [1990] KLR 316
  • Official Receiver and Liquidator v Freight Forwarders Kenya Ltd
    [2005] eKLR
  • Wangechi Kimita v Wakibiru
    [1982-88] 1KAR 978
  • Pancras T. Swai v Kenya Breweries Limited
    [2014] eKLR
  • Shanzu Investments Limited v Commissioner for Lands
    Civil Appeal No. 100 of 1993
  • Wangechi Kimata & Another v Charan Singh
    C.A. No. 80 of 1985
  • Parimal v Veena Bharti
    Civil Appeal 1467 of 2011, [2011]
  • Manchester Outfitters v Pravin Galot & 4 Others
    HCCC 55 of 2012
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 Rules 1, 3(2) and 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Manchester Outfitters Limited & 2 others v Galot Holdings Limited & 3 others (Environment and Land Case Civil Suit 358 of 2012) [2024] KEELC 6029 (KLR)", Case Analysis (2024). Motion dated May 28, 2019 in a suit filed by Plaint dated 19th June, 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6029/eng@2024-09-19

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