Wachira (Suing as Administrator of the Estate of Esther Nungari Kinuthia) & 2 others v Duntow & 2 others (Environment & Land Case E010 of 2023) [2025] KEELC 4210 (KLR)
The bottom line
#A Kenyan court refused to overturn a contempt ruling against a landowner, confirming he must halt construction until the ownership dispute is resolved.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Defendant established sufficient grounds for review of the contempt ruling of 22nd April 2024
The application for review was dismissed; the 1st Defendant failed to demonstrate discovery of new matter, error apparent on the record, or any other sufficient reason.
The court found that the 1st Defendant did not present the BPRT orders of 31st July 2023 when responding to the contempt application and gave no reason for the omission. The orders later availed referred to a different property (Plot No. 356/VII/3X4 rather than 36/VII/3X4). He also pleaded no date or evidence of eviction predating 2nd December 2023. His counsel was present and supported the extension of the status quo orders on 23rd October 2023, so he could have raised any impediment then. Ongoing construction further constituted continued contempt.
The legal test for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1
Review may be granted on discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason; the third ground need not be analogous with the other two.
Relying on Pancras T. Swai v Kenya Breweries Limited, the court restated that Section 80 confers an unfettered right to apply for review and that 'any other sufficient reason' need not be analogous with the other grounds in the rule, as such a restriction would be a clog on the court's unfettered discretion. The court then applied the test and found the 1st Defendant had not satisfied it.
Legal principles established
#- The words 'for any other sufficient reason' in Order 45 Rule 1 need not be analogous with the other grounds specified in the rule, as Section 80 of the Civil Procedure Act confers an unfettered discretion on the court.
- A party who consents to or is present when orders are issued cannot later claim he was precluded from complying without having informed the court of the hindrance at the earliest instance.
Court orders
#- 1.The 1st Defendant's application dated 29th September 2024 is dismissed with costs
- 2.The 1st Defendant must cease its construction activities on the suit property pending the resolution of this suit
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (application for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wachira (Suing as Administrator of the Estate of Esther Nungari Kinuthia) & 2 others v Duntow & 2 others (Environment & Land Case E010 of 2023) [2025] KEELC 4210 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4210/eng@2025-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.