Waswala v Ejilo & another (Environment and Land Appeal 4 of 2021) [2022] KEELC 2740 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the non-placement of the supplementary affidavit in the Court file constituted a mistake or error apparent on the face of the record
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.
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.
Whether the supplementary affidavit, even if considered, would have proved withdrawal of the Subordinate Court application
No. An affidavit cannot by itself prove withdrawal; a Court order endorsing withdrawal, served on the Respondents unless by consent, was required.
The Applicant did not annex any order of the Subordinate Court showing the application was withdrawn.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.
Legal principles established
#- 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- Only a Court order marking a suit or application as withdrawn gives the withdrawal legal effect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
#- 1.The Notice of Motion dated 28th March 2022 is dismissed with costs to the Respondents
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Thuita v Gitonga & another (Environment and Land Case 442 of 2014) [2026] KEELC 3616 (KLR)[2026] KEELC 3616 (KLR)10 Jun 2026
Cite this brief
#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.