Applicant (Appellant) v Respondent - Notice of Motion dated 21/11/2023 (reinstatement of dismissed appeal)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for reinstatement of the appeal dismissed for want of prosecution is merited
- 2.Who should bear the costs of the application
Key legal issues
#Whether the application to reinstate the appeal dismissed for want of prosecution is merited
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
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.
Who bears the costs of the application
Costs follow the event under Section 27 of the Civil Procedure Act; the Respondent is awarded costs
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 21/11/2023 seeking reinstatement of the appeal is dismissed
- 2.Costs of the application are awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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
Relief refused
#Reinstatement of the appeal dismissed for want of prosecution and consequential directions
The Applicant never showed cause by affidavit or evidence on oath why the appeal should not be dismissed, gave contradictory accounts of the email/cause list, and did not come to court with clean hands
Costs
Costs of the application awarded to the Respondent pursuant to Section 27 of the Civil Procedure Act, costs following the event
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.
It is not and can never be enough for learned counsel to come before the court and state from the Bar that the reasons for failure to prosecute the matter were this or other.
an application such as this whose goal is to reinstate the Appeal should neither be brought under Order 12 Rule 7 of the Civil Procedure Rules as the Applicant did nor should an Applicant make such a prayer as was done herein.
Herein, the Applicant has not come to court with clean hands.
The upshot is that the Application lacks merit. It is hereby dismissed. The second issue is therefore simple and in terms of Section 27 of the Civil Procedure Act, Chapter 21 Laws of Kenya, fiows from the finding on the first. Costs follow the event. The Application having being lost, the costs shall be to the Respondent
Issues in the judgment
#The judgment misdescribes the dismissal in paragraph 2 of the grounds as dismissal for non-attendance, whereas the court itself clarifies the dismissal was for want of prosecution
The names of the actual parties to the appeal are not stated anywhere in the ruling; only counsel (John Walter Wanyonyi; Keya) and a reference to an unrelated ELC matter (Jane Yego v Solomon Kitur) appear
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.