Kurji & 4 others v Kurji & 3 others (Civil Appeal E118 of 2021) [2024] KECA 882 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a 13-year-old family dispute back into court, ruling that parties deserve a hearing even after long delays.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court judge properly exercised her discretion in reinstating a suit dismissed for want of prosecution
The appeal fails; the discretion was properly exercised as the judge weighed the prejudice to both parties against the right to be heard on merit and correctly concluded greater prejudice would be suffered by the respondents if the suit remained dismissed
Applying the United India Insurance test, the Court found no misdirection in law, misapprehension of facts, or failure to consider relevant matters. The judge expressly weighed the 13-year delay against the respondents' right to be heard, found crucial witnesses still alive and reachable by video-conference technology, and granted reinstatement with throw-away costs. The dismissal was initiated by the court itself in the absence of both parties, so neither party was heard before dismissal.
Whether publication of the notice to show cause on the Kenya Law website constituted sufficient notice of the intended dismissal
Although the notice was adequate in form, it was not sufficient because the intended audience (the respondents' counsel) was not reached; the respondents thus had no prior notice of the dismissal
The Court endorsed its earlier decision in Nurez Zaherali Kurji, where dismissal orders were set aside because the appellant lacked prior notice of dismissal. Relying on the Supreme Court of India in Sangram Singh, the Court grounded its reasoning in natural justice: men should not be condemned unheard and decisions should not be reached behind their backs. Since both parties were absent and unaware, the suit was effectively dismissed without a hearing.
Whether the appellants demonstrated prejudice from the reinstatement
The appellants failed to demonstrate prejudice; crucial witnesses remain alive and can testify by video conferencing, so the suit should be determined on merits without further delay
The judge had found that the crucial witnesses were still alive and, with technological advancement, could give evidence from the countries to which they had emigrated. The Court reiterated that finding and held it fair and just for the dispute to be determined on merits. The Court also noted the appellants never applied for dismissal of the suit nor attended the notice to show cause, having had 13 years to initiate dismissal themselves.
Legal principles established
#- An appellate court will not interfere with a trial court's exercise of discretion unless the judge misdirected himself in law, misapprehended the facts, took into account considerations he should not have, failed to take into account considerations he should have, or the decision is plainly wrong
- A suit dismissed for want of prosecution without sufficient notice reaching the parties may be reinstated; notice published on the Kenya Law website that did not reach the intended audience is not sufficient notice
- The power to dismiss a suit for want of prosecution and to reinstate a dismissed suit are wide discretions that must be exercised judicially and justly
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.The suit in the High Court to be heard and determined on priority basis
- On appeal from
- High Court
- Milimani HCCC 597 of 2002
- Jurisdiction invoked
- Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Registered Trustees of Church of God in East Africa (K) v Matara & 8 others[2026] KECA 2024 (KLR)17 Jul 2026followed
- Mwanjira & another v Ngovi (Legal Representatives of the Estate of Omar Rajimbo) & 7 others (Environment and Land Case 188 of 2021) [2026] KEELC 948 (KLR)[2026] KEELC 948 (KLR)17 Feb 2026applied
- Kimitei (Suing as an administrator to the Estate of the Late Nyongio Kimitei) & 11 others v Tarus & 50 others (Environment and Land Case 40 of 2019) [2025] KEELC 8544 (KLR)[2025] KEELC 8544 (KLR)4 Dec 2025
- Gachui & 5 others v Frank Logistics Limited & 3 others (Environment and Land Case 282 of 2017) [2025] KEELC 8425 (KLR)[2025] KEELC 8425 (KLR)2 Dec 2025applied
- Kishushe Ranching Co-operative Society Limited Ngolia “B” Kishushe Mining Group (Suing through their registered officials Oliver Mwadime (Chairman), Milton Mghenyi (Secretary) and Dalton Mshambala (Treasurer)) v Mwaruwa & 10 others (Environment and Land Case E001 of 2023) (Environment and Land) [2025] KEELC 7397 (KLR)[2025] KEELC 7397 (KLR)30 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Kurji & 4 others v Kurji & 3 others (Civil Appeal E118 of 2021) [2024] KECA 882 (KLR)", Case Analysis (2024). Civil Appeal (Milimani HCCC 597 of 2002 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/882/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.