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ELCDismissedMiscellaneous Application dated 5th February 2013 (arising from Originating Summons dated 5th June 2012)· [2013] KEELC 154 (KLR)

James H. Archer & another v Inger Christine Archer & 2 others [2013] KEELC 154 (KLR)

High Court of Kenya
15 November 2013
JMJ. M. Mutungi
2,140 words in judgment
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The bottom line

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Kenya's High Court refused to throw out a family land case because the plaintiffs were honestly trying mediation, confirming that out-of-court settlement efforts justify court delays.

What this practically means

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Executive summary

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The 1st to 3rd Defendants moved the court by Notice of Motion dated 5th February 2013, under section 3A of the Civil Procedure Act and Order 37 Rule 16 of the Civil Procedure Rules, seeking striking out and dismissal of the Plaintiffs' originating summons dated 5th June 2012. The originating summons sought declarations of beneficial interests in, and trust over, properties Kwale/Diani Beach Block/806, 807 and 808, with orders for transfer among family members. The Defendants complained that the Plaintiffs failed to fix the summons for directions within 30 days, missed mentions on 31st July 2012 and 11th December 2012, and had lost interest. The Plaintiffs explained the delay by their pursuit of out-of-court mediation of the family land dispute, evidenced by email correspondence from late 2012 to March 2013 to which the Defendants were not averse. The Defendants additionally argued the pleadings were incompetent as drawn under the firm name 'Azania Legal Consultants', contrary to Rule 12 of the Advocates (Practice) Rules, relying on a decision in the Estate of Stephen Kariuki Ndung'u. The court held there was no inordinate or inexcusable delay; the pursuit of ADR in a family land dispute was reasonable and encouraged by Article 159(c) of the Constitution. Rule 12 was satisfied since a qualified advocate with a practising certificate drew and endorsed the pleadings and 'Azania' is a current partner's name; procedural technicalities would not defeat the suit given Article 159(2)(d). The court also noted Order 37 Rule 16 does not provide for dismissal and that section 3A was wrongly relied upon. The application was dismissed with no order as to costs, each party bearing their own costs.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution

Holding

Application dismissed; the delay was not inordinate or inexcusable, and the plaintiffs' pursuit of ADR within the family was a reasonable explanation

Reasoning

The court found that the plaintiffs' efforts to mediate the family land dispute, evidenced by email correspondence from late 2012 to March 2013, explained the failure to take directions. Article 159(c) enjoins courts to promote ADR, so the plaintiffs' overtures were not irresponsible. Order 37 Rule 16 does not provide for dismissal for non-compliance, and reliance on section 3A was inappropriate where substantive provision existed under Order 17(3).

p. 4
02

Whether the pleadings were incompetent for breach of Rule 12 of the Advocates (Practice) Rules

Holding

No breach; the firm name carried a current partner's name and the pleadings were drawn by a qualified advocate holding a practising certificate

Reasoning

The court held Rule 12 aims to ensure authorship of pleadings is clear. Timothy I. A. Bryant signed and endorsed the pleadings and held a current practising certificate, and 'Azania' is the name of a current partner of the firm. Holding otherwise would elevate procedural technicalities contrary to Article 159(2)(d), though the use of 'Legal Consultants' in a firm name may be inappropriate.

p. 4

Legal principles established

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  • The essence of Rule 12 of the Advocates (Practice) Rules is that advocates own the pleadings they draw and there be no doubt as to authorship
  • Parties should as far as possible be afforded the opportunity to have their matters adjudicated on their merits

Court orders

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  1. 1.The Defendants' application dated 5th February 2013 is dismissed
  2. 2.No order as to costs; each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 98
  • Civil Procedure RulesOrder 37 Rule 16
  • Civil Procedure RulesOrder 46 Rule 20
  • Civil Procedure RulesOrder 17 Rule 3
  • Constitution of KenyaArticle 159(c) and Article 159(2)(d)
  • Advocates ActSection 9, Section 34, Section 35(1)
  • Advocates (Practice) RulesRule 12

Cases cited (2)

  • In the matter of the Estate of Stephen Kariuki Ndung'u
    Misc. Application No. 30 of 2012
  • Travel shoppe Ltd –vs- Indigo Harments EPZ Ltd. & 2 Others
    (2004) eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 37 Rule 16 of the Civil Procedure Rules

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, "James H. Archer & another v Inger Christine Archer & 2 others [2013] KEELC 154 (KLR)", Case Analysis (2013). Miscellaneous Application dated 5th February 2013 (arising from Originating Summons dated 5th June 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/154/eng@2013-11-15

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