Watamu Men Fridays Limited v Attorney General (Sued as an Agent of the Government of the Republic of Kenya Representing National Land Commission, Chief Land Registrar, Registrar of Titles, Mombasa, Director of Surveys & Any other Relevant Arm of the Government) & 3 others
The bottom line
#Kenya's Environment and Land Court refused to revive a dormant land case, ruling the company filed it to sit idle and then delayed too long in seeking review.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal under Order 17 Rule 2(1) should be reviewed
Review refused; no new and important matter, no error apparent, and the application was filed after inordinate unexplained delay
The court held the suit was dismissed suo motu under Order 17 Rule 2(1) after no step for one year. The Applicant's claimed basis - the 2011 Ojwang J. stay orders - could not apply to a suit filed in 2018. The alleged non-service of the notice to show cause was not new matter discovered after the order, and the Deputy Registrar was never questioned on service. The COVID-19 explanation did not account for the delay from July 2022 to February 2023.
Whether the 2011 Ojwang J. 'freeze orders' excused non-prosecution
No - orders made in 2011 could not stay a suit filed in 2018; the Applicant's counsel was not candid
The court examined the Ojwang J. decision and found the list of stayed matters did not include this suit, which was filed in 2018, seven years after the ruling. The court found the suit was filed merely to await determination of other active suits over parcel Kilifi/Jimba/1125, which it characterized as an abuse of the court process, citing Ephraim Miano Thamaini v Nancy Wanjiru Wangai.
Whether the delay in filing the review application was reasonable
The delay from 18th July 2022 to 3rd February 2023 was inordinate and unexplained
The Applicant knew of the dismissal by 25th/26th July 2022 but filed the application on 3rd February 2023. The court found no explanation for this roughly six-month delay, contrary to Order 45 Rule 1(b), and rejected the COVID-19 narration as not adding up, applying the Afapack Enterprises principle that review applications must be made without unreasonable delay.
Legal principles established
#- Review is a creature of statute; Section 80 of the Civil Procedure Act prescribes the power of review while Order 45 stipulates the rules, and an applicant must show new and important matter discovered since the order, and file without unreasonable delay
- An applicant for review alleging discovery of new evidence must show it was discovered since the order and could not be procured despite due diligence
Court orders
#- 1.The application dated 3rd February 2023 is dismissed with costs
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Watamu Men Fridays Limited v Attorney General (Sued as an Agent of the Government of the Republic of Kenya Representing National Land Commission, Chief Land Registrar, Registrar of Titles, Mombasa, Director of Surveys & Any other Relevant Arm of the Government) & 3 others", Case Analysis (2023). Environment & Land Miscellaneous Case 29 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19878/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.