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ELCDismissedELC Case (Eldoret), Notice of Motion dated 25th June, 2023

Karanja (Suing as the Representative of the Estate of David Karanja Ng’ang’a) v Kiboinet t/a Sweetland Consultant Limited & 2 others (Environment & Land Case 45B of 2021) [2024] KEELC 3654 (KLR)

Environment and Land Court
30 April 2024
JOJ. M. Onyango
7,311 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 25th June 2023, seeking review, variation or setting aside of orders made on 25th October 2022 staying proceedings in this land dispute pending Kisumu Civil Appeal No. E090 of 2022, which challenges the High Court's transfer of the suit to the Environment and Land Court. The Plaintiff, Francis Ng'ang'a Karanja, contended that he and his Advocate were not served with a hearing notice, that his Replying Affidavit was not considered, and that he was denied an opportunity to file submissions, breaching his right to a fair hearing. The 1st Defendant opposed, arguing the review threshold under Section 80 of the Civil Procedure Act and Order 45 Rule 1 was unmet, the application was filed after undue delay and without annexing the order sought to be reviewed. The court framed three issues. First, it found the Plaintiff was afforded an opportunity to be heard: his own Counsel took the hearing date in court on 2nd June 2022 before Justice Obaga, who directed the hearing in ELC Court 2; her explanation for non-attendance was unproved and contradicted by her admission that a colleague held her brief. Filing submissions was not mandatory as no such directions were issued. Second, following the Court of Appeal in Peter Kirika Githaiga v Betty Rashid, the court held that failure to annex the order sought to be reviewed was not fatal, as a procedural technicality curable under Article 159(2)(d), the ruling being accessible on the court file. Third, no error apparent on the face of the record was established; the ruling's 'considered view' showed discretion properly exercised, and the seven-month unexplained delay violated Order 45 Rule 1(1)(b). Order 42 Rule 23 on re-hearing of appeals was inapplicable. The application was dismissed with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff was afforded sufficient opportunity to be heard
  2. 2.Whether the Application is fatally defective for failure to attach the order/ruling sought to be reviewed
  3. 3.Whether the Plaintiff has established a basis for the review of this court's decision

Key legal issues

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01

Whether the Plaintiff was afforded sufficient opportunity to be heard

Holding

The Plaintiff and his Counsel were aware of the hearing date taken in court by their own Counsel and failed to attend; the court properly proceeded ex parte under Order 12 of the Civil Procedure Rules

Reasoning

The record showed Counsel for the Plaintiff herself took the hearing date of 25th October, 2022 in court on 2nd June, 2022 before Justice Obaga, who directed the application be heard in ELC Court 2. Her claim of being stranded online awaiting virtual proceedings in Court 1 was unproved, and her admission that she had asked a colleague to hold her brief contradicted the claim of non-service. Filing submissions was not mandatory as no directions for written submissions had been issued; submissions are not evidence and their absence does not prejudice a party.

02

Whether failure to attach the order/ruling sought to be reviewened renders the application fatally defective

Holding

No. There is no express requirement under Order 45 to annex the order; the requirement arose from practice and is curable under Article 159(2)(d) where the ruling is on the court file and unambiguous

Reasoning

The court followed the Court of Appeal in Peter Kirika Githaiga v Betty Rashid, holding that where a party can direct the court's attention to the part of the ruling complained of, and the ruling is on the court file, the application for review is not fatally defective. The Applicant had clearly indicated the delivery date of the ruling and there was no ambiguity as to the order complained of.

p. 9
03

Whether the Plaintiff established a basis for review under Section 80 CPC and Order 45 Rule 1

Holding

No. No error apparent on the face of the record was shown, and the application was made after an unexplained delay of seven months

Reasoning

The impugned ruling showed the court took a 'considered view' of all matters including the Replying Affidavit; disagreement with that discretion is a matter of appeal, not review. A coram error as to representation would not affect the outcome. Further, there is no requirement to obtain leave to apply for review, so the delay from 25th October, 2022 to 25th June, 2023 was unexplained, contrary to Order 45 Rule 1(1)(b). Order 42 Rule 23 on re-hearing of appeals was inapplicable as this was not an appeal.

p. 12

Legal principles established

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  • A party must be given a reasonable opportunity of being heard; once the opportunity is given and not utilised, the party can only be heard on why they did not utilise it
  • Failure to annex the order sought to be reviewed is not fatal where the applicant directs the court's attention to the part of the ruling complained of and the ruling is on the court file
  • An error apparent on the face of the record must be self-evident and not require elaborate argument; a review cannot be used to invite a court to sit in appeal of its own decision
  • An application for review must be made without unreasonable delay; there is no legal or procedural requirement to obtain leave of court before applying for review

Court orders

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  1. 1.The Plaintiff's application dated 25th June, 2023 is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JO
majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (matter transferred from the High Court for want of jurisdiction); application brought under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

Relief refused

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Stay of the ruling/orders issued on 25th October, 2022 pending hearing and determination of the application

The Plaintiff was accorded a chance to be heard but failed to utilise it; the application for review failed to meet the Order 45 threshold

p. 13

Review, variation, vacation, discharge and/or setting aside of the ruling/order of 25th October, 2022

No error apparent on the face of the record was established; the application was also made after an unexplained delay of seven months

p. 11

Costs

Dismissed with no order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The totality of the facts and circumstances is that this court is of the opinion that the Plaintifi was accorded a chance to be heard but he chose not to utilise it.
Right to be heard / audi alteram partem
This Court is in agreement with the decision of the Court of Appeal, and in this instance, the failure to annex the order is not fatal to this particular Application because the ruling can easily be accessed on the court file.
p. 9Annexure of order in review applications
The delay of seven months has thus not been explained, contrary to Order 45 Rule 1(1)(b) which requires such an application as this one to be made without unreasonable delay.
p. 12Requirement of promptness in review applications
This means that if the court relies on this ground to review its orders, it will be sitting in appeal of its own decision, which is not permissible in law.
p. 11Limits of review versus appeal
The upshot is that this Court agrees with the 1st Defendant that the Plaintifi's application dated 25th June, 2023 has not met the threshold for grant of orders of review. The application thus lacks merit and is dismissed with no order as to costs.
p. 13Disposition / final orders

Issues in the judgment

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minor

The judgment refers to 'Section 1A and 1B of the Civil Procedure Rules (sic)' in the 1st Defendant's Replying Affidavit, which conflates provisions of the Civil Procedure Act with the Civil Procedure Rules

minor

The case number of the main suit is not stated in the judgment; the matter is identified only by the Notice of Motion dated 25th June, 2023

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Karanja (Suing as the Representative of the Estate of David Karanja Ng’ang’a) v Kiboinet t/a Sweetland Consultant Limited & 2 others (Environment & Land Case 45B of 2021) [2024] KEELC 3654 (KLR)", Case Analysis (2024). ELC Case (Eldoret), Notice of Motion dated 25th June, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3654/eng@2024-04-30

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