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ELCDismissedNot stated in the judgment· [2024] KEELC 6151 (KLR)

Applicant (Appellant) v Respondent - Notice of Motion dated 21/11/2023 (reinstatement of dismissed appeal)

Environment and Land Court
23 September 2024
1,926 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kitale Environment and Land Court refused to reinstate a dismissed land appeal because the appellant offered explanations from counsel's mouth instead of sworn evidence.

What this practically means

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Executive summary

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By a Notice of Motion dated 21/11/2023, the Appellant sought reinstatement of his appeal, which had been dismissed on 25/10/2023 after a notice to show cause issued on 12/10/2023 went unheeded. The application was grounded on Order 12 Rule 7 of the Civil Procedure Rules and supported by an affidavit of counsel, John Walter Wanyonyi, who explained that a court notice served by email was not retrieved in time because of reliance on his court clerk and confusion over the cause list. The Respondent opposed, contending the Appellant had been indolent since filing the Memorandum of Appeal on 29/11/2021 and had never served the appeal or taken steps to prosecute it. The court framed two issues: whether the application was merited, and who should bear costs. It first clarified that the appeal was dismissed for want of prosecution, not non-attendance, so Order 12 Rule 7 was an improper procedural basis. It held that sufficient cause must be shown by affidavit or evidence on oath, not from the bar, to avoid ambush and protect fair-trial rights. The Appellant had sworn no such affidavit, and counsel's explanation contradicted the motion's grounds regarding who handled the email, offending the clean-hands doctrine. The court also rejected the argument that the contentious nature of the land subject matter justified reinstatement. The application was dismissed with costs to the Respondent under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the application to reinstate the appeal dismissed for want of prosecution is merited

Holding

The application fails because no cause was shown, by affidavit or on oath, either before the dismissal or in the reinstatement application; the Applicant gave contradictory accounts of the email and cause list and did not come with clean hands

Reasoning

The court held that sufficient cause must be presented by affidavit or sworn evidence capable of cross-examination, not from the bar, to avoid ambush and preserve fair trial. The Appellant never swore an affidavit explaining the failure to prosecute, and counsel's account contradicted the motion's grounds that the clerk never opened the email. Contradiction offended the clean-hands doctrine. Merely asserting interest in contentious land was not cause.

p. 3
02

Who bears the costs of the application

Holding

Costs follow the event under Section 27 of the Civil Procedure Act; the Respondent is awarded costs

Reasoning

Having found the application misconceived and dismissed it, the court applied the ordinary rule that costs follow the event, exercising its discretion under Section 27 of the Civil Procedure Act in favour of the successful Respondent.

p. 4

Legal principles established

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  • Where a matter is dismissed for want of prosecution, an applicant seeking reinstatement must demonstrate good or sufficient cause by affidavit or evidence on oath, not by explanation from the bar
  • An appeal dismissed for want of prosecution cannot properly be reinstated under Order 12 Rule 7 of the Civil Procedure Rules, which governs dismissal for non-attendance
  • Just as a party seeking to set aside ex-parte judgment must annex a draft defence showing triable issues, an applicant for reinstatement after dismissal for want of prosecution must show the cause that existed before dismissal

Court orders

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  1. 1.The Notice of Motion dated 21/11/2023 seeking reinstatement of the appeal is dismissed
  2. 2.Costs of the application are awarded to the Respondent
On appeal from
Not identified in the judgment (Memorandum of Appeal filed in the ELC; decree to be filed under Order 42 Rule 2)
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 12 Rule 7 of the Civil Procedure Rules; Article 50(1) and 159 of the Constitution of Kenya

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, "Applicant (Appellant) v Respondent - Notice of Motion dated 21/11/2023 (reinstatement of dismissed appeal)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6151/eng@2024-09-23

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