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ELCDismissedNot stated in the judgment· [2019] KEELC 1195 (KLR)

Estate of Philomen Chepetui (Represented by Joseph Mariach) v Miriam Chemain [2019] KEELC 1195 (KLR)

Environment and Land Court
24 October 2019
899 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reinstate a struck-out application because counsel gave no evidence, only bare claims, for missing the hearing date.

What this practically means

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Executive summary

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This ruling by Mwangi Njoroge, Judge, at Kitale disposed of an application dated 3/6/2019 in which the applicant sought reinstatement of an application dated 5th March 2019 together with the previously obtained orders that had been discharged, and leave to file submissions in support of that original motion. The applicant's counsel explained that he had wrongly diarized the matter for 13/6/2019 instead of 13/5/2019, on which date the matter had been dealt with in his absence. The respondent opposed the application, arguing it was bad faith, that costs of Kshs.250,000/= had been taxed by consent in 2016 and remained unpaid, that a prior application to lift warrants had been allowed on terms not complied with, and that the 13/5/2019 date was for highlighting submissions which had never been filed. The court declined reinstatement on three grounds: first, the claim of misdiarization in the supporting affidavit of Steve Biko Osur was unsupported by any annexure and could not constitute proof; secondly, 13/5/2019 was fixed for highlighting submissions under the order of 8/4/2019 and was not a mention date, and the application was struck out rather than dismissed; thirdly, no submissions had been filed by 13/5/2019, and an application listed for submissions may be dismissed for want of prosecution or struck out where counsel neither files submissions nor attends. The court found no evidence that the non-attendance was inadvertent and dismissed the application with costs on 24th October 2019.

Key legal issues

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01

Evidentiary support for sworn statements

Holding

The applicant's counsel's affidavit asserting misdiarization was unsupported by any annexure and could not be relied upon

Reasoning

The court held that affidavit statements require evidentiary support by way of annexures. Although paragraph 5 of the affidavit alluded to an annexture, none was attached. Without exhibits, the court had no evidence that counsel's failure to attend and to file submissions was inadvertent, and the bare statements could not be taken as proof of the facts stated.

p. 1
02

Nature of the 13/5/2019 occasion

Holding

13/5/2019 was not a mention date but the date fixed for highlighting of submissions, so the application was struck out rather than dismissed at a mention

Reasoning

The order of 8/4/2019 expressly directed highlighting of submissions on 13/5/2019. It was therefore incorrect for the applicant to allege that the application had been dismissed on a mention date; the occasion was a submissions hearing and the application was struck out for want of attendance and absence of submissions.

p. 2
03

Consequence of failure to file submissions and non-attendance

Holding

An application listed for submissions may be dismissed for want of prosecution or struck out where no submissions are filed and counsel fails to attend

Reasoning

The court reasoned that had submissions been on record, it might have inferred an intention to prosecute and credited the misdiarization explanation. Here no submissions had been filed by 13/5/2019, and combined with counsel's non-attendance, striking out was proper and left nothing to reinstate.

p. 2

Legal principles established

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  • Statements in an affidavit must be supported by evidence, usually annexures; uncorroborated statements are not proof of the facts stated
  • Where an application is to be disposed of by written submissions and counsel neither files submissions nor attends the hearing, the application may be dismissed for want of prosecution or struck out

Court orders

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  1. 1.The application dated 3/6/2019 is dismissed with costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over an interlocutory application (not expressly stated in the judgment)

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, "Estate of Philomen Chepetui (Represented by Joseph Mariach) v Miriam Chemain [2019] KEELC 1195 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1195/eng@2019-10-24

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