Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEnvironment & Land Case 151 of 2015· [2022] KEELC 3743 (KLR)

Warui v Nabiliki (Environment & Land Case 151 of 2015) [2022] KEELC 3743 (KLR)

Environment and Land Court
27 July 2022
2,216 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

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

#
This was a ruling of the Environment and Land Court at Kitale on a notice of motion dated April 8, 2022 filed by the plaintiff/judgment-debtor, Fredrick Bundi Warui, under sections 1A, 1B and 3A of the Civil Procedure Act and Order 12, Rule 7 of the Civil Procedure Rules, seeking to vacate orders dismissing his suit, to have the suit re-admitted for hearing, and to amend his plaint. The suit had been dismissed on February 16, 2021 after the plaintiff failed to comply with directions to amend the plaint within three days in default of which the suit would stand automatically dismissed. The plaintiff claimed he learned of the dismissal only upon his arrest in March 2022 on warrants arising from taxed costs, and blamed a communication breakdown with his former advocates. The defendant/decree-holder opposed, arguing the application was res judicata, filed after inordinate and inexcusable delay, and made with unclean hands, noting the suit had previously been dismissed in 2017 and reinstated. The court, per Nyagaka J, applied Shah v Mbogo on the discretion to set aside ex-parte orders and held the applicant was clearly aware of the February 16, 2021 orders and their default clause, as his own review application affidavit demonstrated. The court found his attempt to blame his former advocates a fabrication, noted his prior dismissal and reinstatement, and held his recourse lay in an appeal or review. The application was dismissed with costs to the respondent.

Key legal issues

#
01

Whether the dismissal order of February 16, 2021 should be set aside and the suit reinstated under Order 12, Rule 7

Holding

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

Reasoning

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.

p. 5
02

Role of submissions versus evidence

Holding

Submissions are not evidence; the court decided on the merits notwithstanding the applicant's failure to file submissions

Reasoning

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.

p. 3

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. 1.The application dated April 8, 2022 is dismissed with costs to the respondent

Authorities

#

Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 12, Rule 7

Cases cited (2)

  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another
    [2014] eKLR
  • Shah v Mbogo & another
    [1967] EA 116
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.