Estate of Philomen Chepetui (Represented by Joseph Mariach) v Miriam Chemain [2019] KEELC 1195 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Evidentiary support for sworn statements
The applicant's counsel's affidavit asserting misdiarization was unsupported by any annexure and could not be relied upon
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.
Nature of the 13/5/2019 occasion
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
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.
Consequence of failure to file submissions and non-attendance
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
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.