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ELCDismissedEnvironment & Land Miscellaneous Case 29 of 2018· [2023] KEELC 19878 (KLR)

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

Environment and Land Court
22 September 2023
5,354 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicant, Watamu Men Fridays Limited, moved the court by Notice of Motion dated 3rd February 2023 seeking review, variation or setting aside of an order made by Odeny J. on 18th July 2022 dismissing its suit - originally a 2002 judicial review application for mandamus directing the Chief Land Registrar to cancel registration of title Kilifi/Jimba/1125 - and reinstatement of the suit. The Applicant attributed the dormancy of the matter to 2011 stay orders by Ojwang J. suspending judicial review matters over the same parcel, and alleged it was never served with the notice to show cause dated 20th June 2022. The 1st Respondent opposed, contending the application disclosed no new and important matter under Order 45, was filed after inordinate delay, and that the 2011 orders could not affect a suit filed in 2018. Makori J. framed the sole issue as whether the dismissal order was reviewable. The court held that the Ojwang J. orders of 2011 did not and could not affect a suit filed in 2018, criticized counsel's lack of candour, and found the suit had been filed merely to remain at the 'parking lot' pending other active suits over the same parcel, amounting to an abuse of court process. No new matter was discovered after the dismissal order, and the delay from July 2022 to February 2023 was unexplained, the COVID-19 explanation not adding up. The application was dismissed with costs, parties absent, the ruling sent via email.

Key legal issues

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01

Whether the dismissal under Order 17 Rule 2(1) should be reviewed

Holding

Review refused; no new and important matter, no error apparent, and the application was filed after inordinate unexplained delay

Reasoning

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.

p. 9
02

Whether the 2011 Ojwang J. 'freeze orders' excused non-prosecution

Holding

No - orders made in 2011 could not stay a suit filed in 2018; the Applicant's counsel was not candid

Reasoning

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.

p. 8
03

Whether the delay in filing the review application was reasonable

Holding

The delay from 18th July 2022 to 3rd February 2023 was inordinate and unexplained

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The application dated 3rd February 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure Rules, 2010Order 17 Rule 2(1)
  • Civil Procedure Rules, 2010Order 45 Rules 1, 2 and 3
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Registered Land Act (Repealed)

Cases cited (12)

  • Savings & Loan Kenya Ltd v Onyancha Bwomote
    [2014] eKLR

    Disputes ought to be determined on merits; lapses ought not necessarily debar a litigant

  • Wanendeya v Gaboi & another
    [2002] 2 EA 662

    Reinstatement of suits dismissed for non-attendance; disputes should be determined on merits

  • Philip Keipto Chemwolo & another v Augustine Kubende
    [1986] eKLR

    Blunders and mistakes should not deprive a party of a hearing on merit

  • Mbaki & Others v Macharia & another
    [2005] 2 EA 206

    The right to be heard is a valued right

  • Alpha Fine Foods Limited v Horeca Kenya Limited & 4 others
    [2021] eKLR

    What new and material facts entail for review; test of due diligence

  • Afapack Enterprises Limited v Punita Jayant Acharya
    [2018] eKLR

    Review application must be made without unreasonable delay; nine months delay inordinate

  • Invesco Assurance Company Limited v Oyange Barrack
    [2018] eKLR

    Discretion under Order 17 to dismiss suits for want of prosecution

  • Nilesh Premchand Mulji Shah & another t/a Ketan Emporium v M.D. Popat and others & another
    [2016] eKLR

    Discretion to dismiss where no action taken for one year

  • Ivita v Kyumba
    [1984] KLR 441

    Test for dismissal for want of prosecution - whether justice can be done despite delay

  • Argan Wekesa Okumu v Dima College Limited & 2 others
    [2015] eKLR

    Principles for dismissal for want of prosecution

  • Naftali Opondo Onyango v National Bank of Kenya Ltd
    [2005] eKLR

    Court slow to dismiss if suit can proceed without further delay

  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others
    [2022] eKLR

    Abuse of judicial process - multiplicity and want of bona fides

Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010 (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.