Okore v Livoi (Environment & Land Case 67 of 2018) [2023] KEELC 493 (KLR)
The bottom line
#A Kenyan court dismissed a bid to revive a suit because the application had no supporting affidavit — paperwork errors can be fatal.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was proper in law absent a supporting affidavit
The amended Notice of Motion was bare and improperly before the court without factual support by affidavit
The motion as amended referred to a supporting affidavit but none was on record for it; only an affidavit supporting the earlier, abandoned application of November 30, 2021 existed. The court held an affidavit cannot be transplanted from one application to another, that contentious facts must be deponed to by parties themselves, and that the omission was substantive, not a technicality curable under article 159(2)(d). Consequently the replying and further affidavits, addressed to the abandoned application, could not be used either.
Whether the application was merited under order 12 rule 7 and order 17 rule 2(2)
The application was unmerited because no facts supported it and order 17 rule 17(2)(2) cited does not exist in law
Order 12 rule 7 requires affidavit explanation to the court's satisfaction for setting aside a dismissal; none existed. The cited order 17 rule 17(2)(2) does not exist; the correct provision, order 17 rule 2(2), concerns showing cause against dismissal for want of prosecution, which was inapplicable since the suit had already been dismissed on November 19, 2019.
Legal principles established
#- A notice of motion of the kind requiring factual support must be supported by an affidavit; an affidavit filed in support of a different, earlier application cannot be adopted for a subsequent amended application
- The defect of a missing supporting affidavit is not a mere technicality curable under article 159(2)(d) of the Constitution
- Contentious facts must be deponed to by parties, not their counsel
- Under order 12 rule 7, an applicant must explain to the satisfaction of the court, by affidavit, why the suit was dismissed
Court orders
#- 1.The Amended Notice of Motion dated January 06, 2022 seeking to set aside the order of November 19, 2019 dismissing the suit for want of prosecution is dismissed in its entirety
- 2.The applicant to bear the costs of the application
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and orders 12 rule 7 and order 17 rule 2(2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okore v Livoi (Environment & Land Case 67 of 2018) [2023] KEELC 493 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/493/eng@2023-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.