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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 5692 (KLR)

Stephen Wangusi Fedha v Plaintifi/Respondent

Environment and Land Court
18 July 2024
1,298 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Bungoma dismissed a bid to revive a dismissed application, confirming that a missed court hearing must be properly explained under Kenya's review rules.

What this practically means

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Executive summary

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This was a Notice of Motion dated 11th April 2024 by the defendant, Stephen Wangusi Fedha, seeking review, discharge or vacation of orders issued on 9th April 2024 dismissing his application dated 8th March 2024 (for stay following a judgment delivered in favour of the plaintiff on 20th February 2024) for want of prosecution, both parties and counsel having been absent. The applicant argued that his counsel's failure to attend court due to an emergency should not be visited on him as a litigant, that he had filed a Notice of Appeal, and that no prejudice would be suffered. The plaintiff opposed, describing the application as misconceived and aimed at denying her the fruits of her judgment. The court noted the application was improperly premised on Order 12 Rule 7 but, invoking Article 159(2)(d), considered it on the merits under Order 45 rule 1 as read with Section 80 of the Civil Procedure Act. It held the applicant had proved none of the grounds for review - no new evidence, no error apparent, no other sufficient reason - and that his former advocate had not sworn an affidavit explaining the non-attendance. The application was dismissed with costs.

Key legal issues

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01

Whether the applicant met the threshold for review of the order of 9th April 2024 dismissing his application for want of prosecution

Holding

The applicant did not meet the threshold; the application was dismissed with costs

Reasoning

The court applied Order 45 rule 1 as read with Section 80 of the Civil Procedure Act, requiring discovery of new matter, error apparent on the face of the record, or other sufficient reason. It found the applicant gave no ground for review, only explanations for his advocate's absence, uncorroborated by an affidavit from that advocate. No error, mistake, new evidence or sufficient reason appeared on the record.

p. 3
02

Whether procedural defects in the invocation of powers (citing Order 12 Rule 7 instead of a review provision) defeat the application

Holding

The court addressed the application on its merits under Article 159(2)(d) rather than dismissing it for citing the wrong provision

Reasoning

Although the application sought review but invoked Order 12 Rule 7, which does not govern review, and invoked general provisions of the Civil Procedure Act, the court held it was duty bound under Article 159(2)(d) to determine disputes without undue regard to procedural technicalities, and proceeded to consider whether the review threshold was met.

p. 2

Legal principles established

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  • An applicant for review must bring himself within the grounds in Order 45(1) as read with Section 80 of the Civil Procedure Act: discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason, and the application must be made without unreasonable delay.

Court orders

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  1. 1.The Notice of Motion dated 11th April 2024 is dismissed with costs
Jurisdiction invoked
Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules; Article 159(2)(d) of the Constitution

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, "Stephen Wangusi Fedha v Plaintifi/Respondent", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5692/eng@2024-07-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.