Okore v Livoi (Environment & Land Case 67 of 2018) [2023] KEELC 493 (KLR)
The bottom line
#A Kenyan court dismissed a bid to revive a suit because the application had no supporting affidavit — paperwork errors can be fatal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application is proper, in law
- 2.Whether the application is merited
- 3.What orders to issue and on costs
Key legal issues
#Whether the application was proper in law absent a supporting affidavit
The amended Notice of Motion was bare and improperly before the court without factual support by affidavit
The motion as amended referred to a supporting affidavit but none was on record for it; only an affidavit supporting the earlier, abandoned application of November 30, 2021 existed. The court held an affidavit cannot be transplanted from one application to another, that contentious facts must be deponed to by parties themselves, and that the omission was substantive, not a technicality curable under article 159(2)(d). Consequently the replying and further affidavits, addressed to the abandoned application, could not be used either.
Whether the application was merited under order 12 rule 7 and order 17 rule 2(2)
The application was unmerited because no facts supported it and order 17 rule 17(2)(2) cited does not exist in law
Order 12 rule 7 requires affidavit explanation to the court's satisfaction for setting aside a dismissal; none existed. The cited order 17 rule 17(2)(2) does not exist; the correct provision, order 17 rule 2(2), concerns showing cause against dismissal for want of prosecution, which was inapplicable since the suit had already been dismissed on November 19, 2019.
Legal principles established
#- A notice of motion of the kind requiring factual support must be supported by an affidavit; an affidavit filed in support of a different, earlier application cannot be adopted for a subsequent amended application
- The defect of a missing supporting affidavit is not a mere technicality curable under article 159(2)(d) of the Constitution
- Contentious facts must be deponed to by parties, not their counsel
- Under order 12 rule 7, an applicant must explain to the satisfaction of the court, by affidavit, why the suit was dismissed
Court orders
#- 1.The Amended Notice of Motion dated January 06, 2022 seeking to set aside the order of November 19, 2019 dismissing the suit for want of prosecution is dismissed in its entirety
- 2.The applicant to bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and orders 12 rule 7 and order 17 rule 2(2) of the Civil Procedure Rules, 2010
Relief refused
#Setting aside the order of November 19, 2019 dismissing the suit for want of prosecution
The amended application was unsupported by any affidavit; the supporting affidavit to the earlier abandoned application could not be 'transplanted' to it, and article 159(2)(d) could not cure such a substantive defect
Costs of the application to the applicant
Costs follow the event; the application having been lost, the applicant bears the costs
Costs
The applicant will bear the costs of the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
There cannot, in law be a ‘transplant’ of an Afidavit of another application to another.
The application of article 159(2)(d) of the Constitution cannot cure the defect.
Therefore, the unavoidable step to take is to dismiss it in entirety. And since costs follow the event, the application having been lost and the respondent having been brought to court in such proceedings that have been lost, the applicant will bear the costs of the application.
The provision contemplates that the applicant explains to the satisfaction of the court why his suit was dismissed and that must be by way of Afidavit in support of the application. Absent of that the application fails.
Issues in the judgment
#The judgment inconsistently dates the original notice of motion, referring to both October 30, 2021 and November 30, 2021 for the original application and its affidavit
The judgment states the amended application was dated January 06, 2022 in places but elsewhere refers to the application dated January 06, 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okore v Livoi (Environment & Land Case 67 of 2018) [2023] KEELC 493 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/493/eng@2023-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.