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ELCDismissedNot stated in judgment· [2021] KEELC 1763 (KLR)

George Awuor Okullo v China Wuyi Company Limited; Jack Baraza Baraza & another (Third Party) [2021] KEELC 1763 (KLR)

Environment and Land Court
23 September 2021
GOG.M.A. Ongondo
1,799 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to revive a dismissed case application because of unexplained delay and a filed appeal, so pursuing an appeal locks you out of the trial court.

What this practically means

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Executive summary

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The defendant, China Wu Yi Company Limited, applied by notice of motion dated 27th August 2020 to set aside or vary the orders of 15th July 2020 dismissing its earlier application dated 27th January 2020 (which sought stay of execution of judgment delivered 4th December 2019) for non-attendance, and to have that application reinstated for hearing on merits, with extension of the lapsed stay. It attributed the non-attendance to Covid-19: a pupil in its advocates' firm tested positive, forcing closure of the office. Counsel Emmanuel Eredi swore supporting and further affidavits annexing Covid-19 results. The plaintiff, George Awuor Okello, opposed through a replying affidavit, contending the dismissal flowed from the applicant's negligence, that submissions undertakings were never honoured, and that the delay was inexcusable and inordinate. The application was canvassed by written submissions; only the applicant filed submissions, citing Chemwolo, Evita, Mbogo, Murai and other authorities on excusable delay and mistakes of counsel. The court found counsel had attended court when directions were given and no reason existed for non-attendance; the applicant had taken over fifty-six days without canvassing the motion, and the interim stay had lapsed. Crucially, since the applicant had filed a Notice of Appeal dated 17th December from the judgment, the court held it would be unfair for the application to proceed simultaneously before it and the Court of Appeal, declared itself functus officio, and declined the application, with costs to abide the appeal.

Key legal issues

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01

Whether the delay in canvassing the application was excusable

Holding

The delay was inexcusable; the applicant took over fifty-six days without canvassing its motion despite counsel having attended court when directions were issued

Reasoning

The court noted counsel attended court when the 20th May 2020 directions were given, so there was no reason for non-attendance when the motion came up for dismissal on 15th July 2020. The motion had been commenced forty days after judgment and the interim stay had lapsed. Applying Article 159(2)(b) and (e) on avoiding delay, the court found the explanation of Covid-19 office closure insufficient to excuse the prolonged inaction.

p. 2
02

Whether the court retained jurisdiction to reinstate the dismissed application

Holding

The court declined to exercise any further jurisdiction, holding itself functus officio because the applicant had filed a Notice of Appeal dated 17th December from the judgment

Reasoning

The applicant had filed a Notice of Appeal under Order 42 Rule 6(4) of the Civil Procedure Rules. The court reasoned it would not be fair for the application to be heard simultaneously by this court and the Court of Appeal, subscribing to the Motor Vessel Lillian 'S' principle on jurisdiction. It therefore could not take one more step in the matter.

p. 3

Legal principles established

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  • Delay for even one day will result in dismissal of an application if not explained
  • The right to fair hearing before an adverse decision is taken against a party is fundamental and permeates the entire justice system
  • A trial court is functus officio and should not take further steps in a matter once a notice of appeal has been filed

Court orders

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  1. 1.The notice of motion dated 27th August 2020 is dismissed
  2. 2.The costs of the application to abide the appeal as envisioned in the Notice of Appeal duly filed

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 12 Rule 7; Order 51 Rule 1; Order 51 Rule 16; Order 42 Rule 6(4)
  • Constitution of Kenya, 2010Article 159(2)(b) and (e); Article 50(1); Article 48
  • Environment and Land Court Practice Directions, 2014Practice Direction number 33

Cases cited (9)

  • Philip Chemwolo and another =vs= Augustine Kubende
    (1982-88) KLR 103
  • Evita =vs= Kyumbu
    (1984) KLR 441
  • Haji Ahmed Sheikh t/a Hasa Haulers =vs= Highway Carriers Ltd
    (1982-88) 1 KAR 1184
  • Mbogo =vs= Shah and another
    (1968) EA 93
  • Belinda Murai and 9 others =vs= Amos Wainaina
    (1979) eKLR
  • Raphael Musila Mutiso and 3 others –vs– Joseph Ndava Nthuka and another
    (2019) eKLR
  • James Kanyiita Nderitu and another –vs– Marios Philotas Ghikas and another
    (2016) KLR
  • Geofrey Sure Ogada (suing as administrator of the estate of Joshua Ogada Ogonda-Deceased) –vs– Reuben Otieno Disii and another
    (2021) eKLR
  • Motor Vessel Lillian “S” –vs– Caltex Oil (Kenya) Ltd
    (1989) KLR 1
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "George Awuor Okullo v China Wuyi Company Limited; Jack Baraza Baraza & another (Third Party) [2021] KEELC 1763 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1763/eng@2021-09-23

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