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ELCDismissedBungoma ELC Appeal No 4 of 2021 (Ruling on Notice of Motion dated March 28, 2022)· [2022] KEELC 2740 (KLR)

Waswala v Ejilo & another (Environment and Land Appeal 4 of 2021) [2022] KEELC 2740 (KLR)

Environment and Land Court
12 July 2022
2,305 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Bungoma dismissed an application to review its earlier ruling, confirming that only documents actually on the court file count as filed.

What this practically means

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Executive summary

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The Applicant, Fred Waswala, sought by Notice of Motion dated March 28, 2022, under Section 80 of the Civil Procedure Act and Order 45 Rule 1(b) of the Civil Procedure Rules, an order of review of the Court's ruling of March 23, 2022 which had struck out his earlier application for stay of proceedings and execution of the decree in Bungoma Chief Magistrate's Court Civil Case No 200 of 2015 pending Bungoma ELC Appeal No 4 of 2021. The earlier application had been struck out as sub judice and an abuse of process because a similar application was pending in the Subordinate Court. The Applicant contended that the Court had not considered a supplementary affidavit filed on December 8, 2021 showing withdrawal of the Subordinate Court application, and that its omission from the Court file was an error apparent on the face of the record not attributable to him. The 1st Respondent opposed, asserting the application was frivolous, that no order proving withdrawal was annexed, and that the Notice of Withdrawal was never served on her Counsel. Holding: review was refused. The Court reasoned that a document not placed in the Court record is not filed, so there was no error apparent on the face of the record; Order 45 rule 1 does not excuse every inadvertent mistake by Counsel where due diligence would have located the document. Further, the affidavit could not in any event prove withdrawal, which required a Court order endorsed by the Subordinate Court and, unless by consent, served on the Respondents. The Respondent's un-rebutted averments stood. The application was dismissed with costs to the Respondents on July 12, 2022.

Key legal issues

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01

Whether the non-placement of the supplementary affidavit in the Court file constituted a mistake or error apparent on the face of the record

Holding

No. Since the affidavit was not in the Court record, it was not filed, and the Court could not have known of its existence; any lapse was on the part of the Applicant's Counsel, which Order 45 rule 1 does not excuse where due diligence would have located the document.

Reasoning

The Applicant himself conceded that the affidavit though received was not placed in the Court record. Filing means placing a document in the official record. If received but misfiled, a letter to the Deputy Registrar would have cured it; there was no evidence the document was ever forwarded to the Court. Order 45 rule 1 does not excuse every inadvertent error, only those where documents could not be produced even after due diligence. Both Applicant and Counsel could with due diligence have laid hands on the affidavit.

p. 5
02

Whether the supplementary affidavit, even if considered, would have proved withdrawal of the Subordinate Court application

Holding

No. An affidavit cannot by itself prove withdrawal; a Court order endorsing withdrawal, served on the Respondents unless by consent, was required.

Reasoning

The Applicant did not annex any order of the Subordinate Court showing the application was withdrawn. The Notice of Withdrawal dated November 18, 2021 was never served on the Respondents' Counsel and no receipt confirmed its authenticity. Order 25(1) requires that withdrawal be effected by Court order. The 1st Respondent's averments to this effect were un-rebutted, no supplementary affidavit having been filed in response.

p. 5

Legal principles established

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  • An error or omission sufficient for review must be self-evident and not require elaborate argument; it is not enough that another Judge could have taken a different view
  • A document is not filed unless it is placed in the Court record; a document not in the Court record could not have been considered by the Court
  • Only a Court order marking a suit or application as withdrawn gives the withdrawal legal effect

Court orders

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  1. 1.The Notice of Motion dated 28th March 2022 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1(1)(b)
  • Civil Procedure RulesOrder 25 Rule 2(2)
  • Civil Procedure RulesOrder 25(1)

Cases cited (2)

  • National Bank of Kenya Ltd v. Ndungu Njau
    1997 eKLR
  • Otieno Ragot & Company Advocates v. National Bank of Kenya Ltd
    2020 eKLR
On appeal from
Bungoma Chief Magistrate's Court
Civil Case No 200 of 2015
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 Rule 1(b) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Waswala v Ejilo & another (Environment and Land Appeal 4 of 2021) [2022] KEELC 2740 (KLR)", Case Analysis (2022). Bungoma ELC Appeal No 4 of 2021 (Ruling on Notice of Motion dated March 28, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2740/eng@2022-07-12

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