Warui v Nabiliki (Environment & Land Case 151 of 2015) [2022] KEELC 3743 (KLR)
The bottom line
#The Environment and Land Court refused to reinstate a land suit dismissed for non-compliance, finding the plaintiff knew of the dismissal orders and simply delayed.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal order of February 16, 2021 should be set aside and the suit reinstated under Order 12, Rule 7
The application was dismissed; the applicant knew of the orders and their automatic dismissal default clause, had previously had the suit reinstated after a 2017 dismissal, and his attempt to blame his advocates was a fabrication
The court found the applicant was aware of the directions to amend the plaint within three days in default of which the suit would stand automatically dismissed. His own review application affidavit showed knowledge. His assertion of ignorance was implausible for a plaintiff pursuing his own suit, and he displayed a propensity to violate court orders. His recourse lay in appeal or review.
Role of submissions versus evidence
Submissions are not evidence; the court decided on the merits notwithstanding the applicant's failure to file submissions
Relying on Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court held that submissions are merely parties' marketing language and cannot take the place of evidence. The absence of the applicant's submissions would not, by itself, determine the matter; the court would decide on the merits.
Legal principles established
#- The court's discretion to set aside ex-parte judgments or orders is exercised to avoid injustice from accident, inadvertence or excusable mistake, but not to assist a party who has deliberately obstructed or delayed the course of justice
- Submissions do not constitute evidence and cannot substitute for proof of a claim by evidence
Court orders
#- 1.The application dated April 8, 2022 is dismissed with costs to the respondent
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12, Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warui v Nabiliki (Environment & Land Case 151 of 2015) [2022] KEELC 3743 (KLR)", Case Analysis (2022). Environment & Land Case 151 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3743/eng@2022-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.