Johnson Kamau Macharia v Alice Bomet & 5 others [2017] KEELC 3163 (KLR)
The bottom line
#A Kenyan court refused to reinstate a suit struck out automatically for unpaid costs, warning that missed court deadlines have immediate consequences.
What this practically means
#Executive summary
#Key legal issues
#Whether grounds for review under Order 45 Rule 1 were established
No new and important matter or evidence, and no error apparent on the face of the record, was shown
The court examined the plaintiff's submissions and found no evidence warranting review. The alleged error - the Deputy Registrar's failure to act on a letter seeking removal from the cause list - was not an error apparent on the record because the Deputy Registrar could not act unilaterally on one party's letter. Review was therefore not available.
Effect of the self-executing striking-out order of 17th October 2016
The suit stood automatically struck out before 22nd February 2017 since costs and fees were unpaid, so the 22nd February order merely confirmed what had occurred
Munyao Sila J's order directed payment of costs and fees before the next date, in default the suit to stand struck out. Payment was not made, so the suit was struck out automatically at the start of 22nd February 2017. Any challenge should have targeted that order, not the later confirmation order.
Duty of full and frank disclosure in applications for equitable relief
The plaintiff failed to candidly own up to non-compliance with the order, defeating the equitable indulgence sought
Setting aside is an equitable remedy requiring candour. The plaintiff did not acknowledge the failure to pay the ordered costs and fees, which the court held disentitled him to the indulgence of setting aside.
Legal principles established
#- A self-executing striking-out order takes effect without further action; a confirmation order cannot revive the suit, and the proper target of review is the original self-executing order
- Courts do not act in vain; setting aside an order would be futile where the suit remains struck out
- A party seeking equitable relief must approach the court with full and frank disclosure
- A Deputy Registrar cannot unilaterally remove a matter from the cause list on the strength of a letter from one party
Court orders
#- 1.The application dated 27th February 2017 is dismissed with costs to the 1st, 2nd and 3rd defendants
- Jurisdiction invoked
- Order 45 Rule 1 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnson Kamau Macharia v Alice Bomet & 5 others [2017] KEELC 3163 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3163/eng@2017-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.