Toroitich Misoi Mereng v Simeon Kiprotich Kattam [2021] KEELC 3294 (KLR)
The bottom line
#The Environment and Land Court struck out both applications because the land suit had been dismissed, and a counterclaim and interim order cannot outlive it.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendant's counterclaim survived the dismissal of the plaintiff's suit on 4th December 2017
The counterclaim did not survive; both parties were absent on the hearing date, there was no distinction as to whose suit was dismissed, and the defendant took no step in the matter for nearly three years
Order 12 Rule 1 allows dismissal where neither party attends. Both parties were absent, so the whole suit including the counterclaim was dismissed. The defendant was equally guilty of delay and, having opposed reinstatement and filed a Bill of Costs, was treated as accepting the suit was fully determined. The court applied Maina Karanja v Maina Karanja on a defendant's obligation to be vigilant with a counterclaim.
Whether the status quo order of 16th November 2015 was still in force
No; it was an interlocutory order that lapsed after twelve months by operation of Order 40 of the Civil Procedure Rules, 2010, and was never extended
Order 40 fixes the lifespan of an interlocutory order at twelve months. No subsequent order extended it. The court applied the Erick Kimingichi Wapang'ana and Barclays Bank authorities on lapse of interlocutory injunctions. Consequently the court is functus officio and cannot entertain enforcement of the expired order.
Whether the court could entertain the applications given the dismissal of the suit
The court was functus officio; the applications were premised on a non-existent suit and their consideration would be academic
The suit was dismissed on 4th December 2017 and two reinstatement applications were dismissed. The defendant opposed reinstatement and filed a Bill of Costs, showing he accepted the suit was finalized. Having done so, he could not approbate and reprobate by now treating the suit and counterclaim as alive.
Whether the advocate's supplementary affidavit should be given weight
No; the affidavit by the defendant's advocate dealt with contentious matters of fact and was given no weight
Citing Magnolia Pvt Limited v Synermed Pharmaceuticals (K) Ltd, the court held that advocates should not swear affidavits on disputed facts as this converts counsel into a potential witness subject to cross-examination. The affidavit sworn by Elijah Momanyi Mogona Advocate was therefore disregarded.
Legal principles established
#- A counterclaim does not automatically survive the dismissal of the main suit where both parties were absent and the defendant took no step to prosecute the counterclaim
- An interlocutory injunction lapses twelve months after issuance unless extended by a subsequent order
- A party cannot approbate and reprobate - having accepted that a suit was determined, a party cannot later treat it as pending
- Advocates should not swear affidavits on contentious matters of fact
Court orders
#- 1.The two applications by the defendant dated 19th March 2021 and 26th March 2021 are struck out with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (inherent jurisdiction over suits and applications arising from land; Civil Procedure Act and Rules applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Toroitich Misoi Mereng v Simeon Kiprotich Kattam [2021] KEELC 3294 (KLR)", Case Analysis (2021). Eldoret Environment and Land Court Case No. 309 of 2014 (Notices of Motion dated 19th March 2021 and 26th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3294/eng@2021-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.