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ELCAllowedNot stated in the judgment (Judicial Review application re Notice of Motion dated 27th April 2015)· [2024] KEELC 7468 (KLR)

Obura & another v Okello; Okello (Exparte Applicant); Obura & another (Interested Parties) (Environment and Land Miscellaneous Application 53 of 2015) [2024] KEELC 7468 (KLR)

Environment and Land Court
13 November 2024
BOBoaz N. Olao
958 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, John Nakhabi Okello, filed a Notice of Motion on 27th April 2015 seeking Certiorari to quash the decision of the Funyula Land Disputes Tribunal over land parcel Samia/Luanda/Mudoma/1260, which had been adopted as a decision of the Busia Chief Magistrate's Court in Land Disputes Case No 20 of 2008. He took no steps to prosecute the application for about seven years. On 13th July 2022, counsel for the Interested Party told the court the Applicant had died some 18 months earlier, and Omollo J marked the application as withdrawn. By a Notice of Motion dated 24th April 2024 under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 3 Rule 10 of the Civil Procedure Rules, the Applicant sought to have the order set aside, explaining that his file had gone missing, was later traced in the Archives, and that the court had been erroneously informed that he - rather than the Interested Party - had died. The Interested Party filed no response or submissions despite service, leaving the application unopposed. Olao J held that it was not in dispute that the withdrawal order was made on the wrong premise that the Applicant was deceased, and that since he was demonstrably alive the order had to be set aside as a matter of course. Allowing the application, the court reinstated the 2015 Notice of Motion for hearing, directed the newly instructed firm of advocates to regularize its appointment, listed the matter for hearing on 17th December 2024, and made no order as to costs.

Key legal issues

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01

Whether a dismissal/withdrawal order procured on an erroneous factual premise (that the applicant had died) should be set aside

Holding

The court set aside the order and reinstated the application, holding that the withdrawal was made on wrong premises and the applicant is alive

Reasoning

The court found it undisputed that the 2022 withdrawal order rested on the mistaken belief that the Applicant had died 1½ years earlier. The Applicant's letter of 27th October 2022 showed he was alive and pursuing the matter. Counsel for the Interested Party did not file a response despite being served and granted time, leaving the application unopposed. Given the error and the injustice of denying a hearing, the court found setting aside the order to be a matter of course.

p. 2
02

Whether an unopposed application should nonetheless be refused

Holding

No; opposition is not determinative where allowing the application is required to avoid injustice

Reasoning

The court observed that the Motion was unopposed but stressed that its decision did not rest on the absence of opposition. Invoking the principle that denying a subject a hearing should be the last resort of the court, the judge held that dismissing the application would be the height of injustice and allowed it.

p. 1

Legal principles established

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  • An order withdrawing or dismissing a case on the erroneous premise that a party is deceased must be set aside as a matter of course

Court orders

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  1. 1.The Notice of Motion dated 24th April 2024 is allowed and the application dated 27th April 2015 is reinstated to hearing
  2. 2.The firm of D. K. Nabulindo & Company Advocates to regularize their appointment by signing the Notice of Appointment
  3. 3.The Notice of Motion dated 27th April 2015 to be listed for hearing on 17th December 2024
  4. 4.No orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53
  • Limitation of Actions ActSection 7
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Civil Procedure RulesOrder 3 Rule 10

Cases cited (1)

  • Sebei District Administration -v- Gasyali & Others
    1968 E.A 300
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 3 Rule 10 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Obura & another v Okello; Okello (Exparte Applicant); Obura & another (Interested Parties) (Environment and Land Miscellaneous Application 53 of 2015) [2024] KEELC 7468 (KLR)", Case Analysis (2024). Not stated in the judgment (Judicial Review application re Notice of Motion dated 27th April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7468/eng@2024-11-13

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