Kibowen v Ruto & 15 others
The bottom line
#A Kenyan court struck out land defendants' transfer application because they ignored an order to file written submissions, and barred future applications without permission.
What this practically means
#Executive summary
#Key legal issues
#Consequence of failure to file submissions as directed
The application stands automatically struck out as directed by the court's order of June 20, 2023
The court had directed that the motion be heard by written submissions, with default resulting in automatic striking out. The defendants did not file submissions within three days and no other mode of disposal was provided. The court emphasised respect for court orders and noted a pattern of delay tactics by the defendants, including multiple needless applications.
Res judicata and abuse of process regarding place of trial
The plaintiff argued the issue of place of trial was settled in the ruling of February 15, 2018, rendering the transfer application res judicata; the court did not determine this because the application was struck out
The plaintiff deposed that a prior ruling held the suit property is 41.6 kilometres from Nakuru and that the suit was properly filed in Nakuru. He also raised a preliminary objection that the application was res judicata, defective and an abuse of process. The court did not rule on these grounds, disposing of the matter instead on the failure to file submissions.
Legal principles established
#- An applicant who is ordered to file written submissions and fails to do so fails to prosecute the application, which may be struck out regardless of whether the adversary filed submissions
- A court may restrain a party who repeatedly files needless applications from filing further applications without leave
Court orders
#- 1.The defendants' Notice of Motion dated May 17, 2023 is automatically struck out for failure to file written submissions as ordered
- 2.The applicants shall bear the costs of the application
- 3.The defendants shall not file any other application in future without leave of court, formally applied for with justification
- 4.The suit to be mentioned virtually on October 18, 2023 for issuance of a hearing date
- Jurisdiction invoked
- Sections 1, 1A, 3, 3A and 18(1) of the Civil Procedure Act (application for transfer); Environment and Land Court jurisdiction over land use and occupation disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibowen v Ruto & 15 others", Case Analysis (2023). Environment & Land Case 174 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19918/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.