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ELCDismissed· [2025] KEELC 5975 (KLR)

Ndungu & 2 others v Patrick & 5 others (Environment and Land Case E009 of 2024) [2025] KEELC 5975 (KLR)

Environment and Land Court
2 September 2025
CMC.G. Mbogo
2,621 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to revive a ruling, warning that public records and delayed applications don't count as new evidence.

What this practically means

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Executive summary

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The plaintiffs/applicants moved the court by notice of motion dated 11th December 2024 seeking review of the ruling delivered by Oguttu Mboya J. on 24th October 2024, which had struck out the 3rd to 6th defendants. They relied on a CR 12 obtained from the companies registry showing that the 3rd to 6th defendants were not directors of the 2nd defendant at the material time, arguing this was new and important matter, that the striking out rested on an erroneous assumption, and asking the court to lift the corporate veil and hold them personally liable. The 1st and 2nd defendants opposed, contending the application was a disguised appeal, that the CR 12 was effortlessly obtainable, that subsisting orders in Embakasi Ranching Company Limited v Registrar of Companies governed the disputed directorship, that the suit against the deceased 5th defendant had abated, and that the application was brought after 40 days' inordinate delay. The court framed a single issue: whether grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 were established. Holding that the applicants failed to demonstrate any statutory ground - the CR 12 information could have been obtained before the ruling, the applicants deliberately avoided the pending directorship rulings and the abatement issue, and there was unreasonable delay - the court dismissed the notice of motion with costs in the cause.

Key legal issues

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01

Whether the application meets the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

Holding

It does not; no ground of review was established and there was unreasonable delay

Reasoning

The court held that the applicants failed to identify any of the statutory grounds. The CR 12 was obtained from the companies registry only after the ruling and could have been accessed efiortlessly beforehand; it was sought to fill holes in the case rather than being genuinely new and important matter. The applicants also deliberately failed to address the subsisting orders on directorship and were silent on the abatement of the suit against the deceased 5th defendant, and the 40-day delay was inordinate.

p. 5

Legal principles established

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  • Section 80 of the Civil Procedure Act grants the power to review; Order 45 Rule 1 sets out the grounds and procedure: discovery of new and important matter or evidence, mistake or error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay
  • An applicant for review must demonstrate the specific ground relied upon and cannot leave it to the court to select which ground fits the case
  • Information obtainable from the companies registry efiortlessly does not constitute new and important matter discovered after the ruling

Court orders

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  1. 1.The notice of motion dated 11th December, 2024 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrder 45 Rules 1(1), 1(2); Order 51 Rule 1

Cases cited (19)

  • Nyamogo & Nyamogo Advocates v Kogo
    [2001] eKLR
  • Republic v Public Procurement Administrative Review Board & 2 others Ex-parte Pelt Security Services Limited
    [2018] eKLR
  • Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd
    [2014] eKLR
  • Savings and Loans Kenya Ltd v Kanyenje Gakombe & Another
    [2015] eKLR
  • DT Dobie & Company (Kenya) Ltd v Muchina
    [1980] KLR
  • Githunguri Dairy Farmers Cooperative Society Ltd v Erskine & Gathogo Advocates
    [2018] eKLR
  • Salomon v Salomon & Co. Ltd
    [1897] AC 22
  • Prest v Petrodel Resources Ltd
    [2013] UKSC 34
  • Jones v Lipman
    [1962] 1 WLR 832
  • C. Muttu v Bharath Match Works
    AIR 1964 Kant 293
  • Pratap Chand Mehta v Chrisna Devi Meuta
    AIR 1988 Delhi 267
  • Waithaka v Bashaeki & 2 others
    [2024] eKLR
  • Anwar Ali & another v Monica Muthoni & another
    [2021] eKLR
  • D.J. Lowe & Company Ltd v Bonquo Indosuez
    Nairobi Civil Application No. 217 of 1998
  • Republic v Medical Practitioners & Dentists Board & another; MIO1 on behalf of MIO2(a Minor) & another (Interested Party); King'ang'a (Exparte)
    Miscellaneous Civil Application 59 & 63 of 2019 (Consolidated) [2021] eKLR
  • Onyango & 2 others v Awaa & 2 others
    (Civil Appeal E075 of 2022) [2023] eKLR
  • Kolaba Enterprise Ltd v Shamsudin Hussein Varvani & Another
    [2014] eKLR
  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR
  • Embakasi Ranching Company Limited v Registrar of Companies & 14 others
    Commercial Case No. E096 of 2019
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Section 80 of the Civil Procedure Act and Order 45 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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Cite this brief

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Cite this brief

Caselaw, "Ndungu & 2 others v Patrick & 5 others (Environment and Land Case E009 of 2024) [2025] KEELC 5975 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5975/eng@2025-09-02

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