Thoya & another v Arbitration Board & 3 others; Chea (Interested Party) (Miscellaneous Application 22 of 2021) [2023] KEELC 589 (KLR)
The bottom line
#A Kenyan court ruled that your lawyer's mistake is not grounds to reopen a case, especially when filed late without explanation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the application for review meets the threshold for review under Order 45 rule 1 and Section 80 of the Civil Procedure Act
Key legal issues
#Whether the application meets the threshold for review under Section 80 of the Civil Procedure Act and Order 45 rule 1
The application fails; the document relied on was known to both applicant and counsel, there was no new and important matter, no error apparent on the record, and inordinate unexplained delay of approximately three months
The court analysed the grounds for review: discovery of new and important evidence not within the applicant's knowledge after due diligence, mistake or error apparent on the face of the record, or other sufficient reason. The consent from the Land Adjudication Officer was in the applicant's and his advocate's hands before the ruling. Advocate negligence in attaching it is not an error apparent on the record. Further, counsel had an opportunity during the hearing to cure the omission, and the three-month delay was unexplained.
Whether a mistake by an advocate falls within the review categories under Order 45 rule 1
No; only mistakes or errors apparent on the face of the record qualify, and an advocate's failure to attach a document does not
The court distinguished between advocate negligence and mistake or error apparent on the record. The impugned application had been canvassed and counsel had an opportunity to respond, put his house in order, or seek leave to attach the consent, which was a core document. Failure to do so was negligence attributable to the party, not a reviewable error.
Legal principles established
#- A mistake by an advocate in failing to attach a document in his possession is not an error apparent on the face of the record capable of grounding review under Order 45 rule 1
- Review requires discovery of new and important matter, mistake or error apparent on the face of the record, or other sufficient reason, applied for without unreasonable delay
Court orders
#- 1.The Notice of Motion dated February 28, 2022 seeking review of the ruling and orders of November 30, 2021 is dismissed
- 2.Costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (inherent review jurisdiction of the court that made the order)
Relief refused
#Review of the ruling and orders of the court dated November 30, 2021 and setting aside of the same
The consent from the Land Adjudication Officer was within the knowledge of both the Applicant and his counsel; there was no discovery of new and important matter, no mistake or error apparent on the face of the record, and the application was filed after inordinate delay of about three months with no explanation
Costs
dismissed with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In my opinion, mistake by an advocate to attach a document is not one that can be termed as apparent on record.
There must be suficient reason why a review should be allowed and the application for review must be made without unreasonable delay.
I therefore find no merit in the application and is consequently dismissed with costs to the Respondent.
Issues in the judgment
#The ruling identifies the opposing party as an Interested Party, yet the final order awards costs to 'the Respondent', a party not otherwise identified
The case number and full title of the underlying suit are not stated; the ruling refers only to the Notice of Motion dated February 28, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thoya & another v Arbitration Board & 3 others; Chea (Interested Party) (Miscellaneous Application 22 of 2021) [2023] KEELC 589 (KLR)", Case Analysis (2023). Notice of Motion dated February 28, 2022 (case number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/589/eng@2023-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.