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ELCAllowedELC Case No. 446 of 2005 (OS)· [2014] KEELC 122 (KLR)

Catherine C. Kittony v Jonathan Muindi & 2 other [2014] KEELC 122 (KLR)

Environment and Land Court
30 October 2014
MSMUNYAO SILA
1,522 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land suit, but only after the plaintiff agreed to pay costs, confirming courts demand accountability for delay.

What this practically means

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Executive summary

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This was a ruling on the plaintiff's application dated 10 March 2014 seeking reinstatement of her suit, which had been dismissed on 29 January 2014 for want of prosecution at a notice to show cause. The underlying suit, filed by plaint on 5 May 2005, concerned land parcel Karuna/Sosiani Block 2 (Progressive)/157 bought by the plaintiff at a public auction conducted by the National Bank of Kenya Ltd in exercise of its chargee's statutory power of sale. She found the original 1st defendant occupying 5 acres, and challenged a Land Disputes Tribunal award in his favour; he counterclaimed for declaration of ownership. After the original 1st defendant died, his sons were substituted on 3 March 2010, after which no step was taken until the court, on its own motion, issued a notice to show cause. The plaintiff did not appear and her suit was dismissed. She sought reinstatement on the ground that the notice was never served on her advocates, supported by an affidavit of Mr. Wilson Kalya citing a communication breakdown. The 1st defendants and the State Law Office opposed, citing inordinate unexplained delay. The court found no affidavit of service and gave the advocates the benefit of doubt, but held the plaintiff's explanations unconvincing given her total inaction. Nonetheless, exercising discretion and emphasising that shutting out a party should be a last resort, the court reinstated the suit conditionally upon payment of Kshs. 30,000/= costs to the 1st defendants within 30 days, failing which the dismissal would stand.

Key legal issues

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01

Effect of non-service of notice to show cause before dismissal

Holding

The court gave the plaintiff's advocates the benefit of the doubt on service since there was no affidavit of service, but found the delay excuses unconvincing.

Reasoning

The court observed it had no affidavit of service proving service of the notice to dismiss on M/s Kalya & Company Advocates and therefore gave the firm the benefit of doubt. Nonetheless, the court held it would still have dismissed the suit even if it revisited the notice, because the plaintiff's explanations for the delay of nearly four years were not convincing.

p. 2
02

Whether the delay in prosecuting the suit was excusable

Holding

The delay was inordinate and inexcusable; the plaintiff was responsible for following up her own suit.

Reasoning

It was undisputed that the plaintiff had taken no step since inception of the suit and none since 3 March 2010. The pleaded communication breakdown did not wash; the plaintiff could have called or visited her counsel in Eldoret. Her alleged relocation to Nairobi was doubtful given the uncontroverted assertion that she teaches at Sosiyo Primary School nearby.

p. 3
03

Discretion to reinstate a suit dismissed for want of prosecution

Holding

The court exercised its discretion in favour of reinstatement, hearing being a last resort to shut out a party, but attached conditional costs.

Reasoning

Although the plaintiff failed to justify the delay, the court noted that every party deserves a hearing and shutting a party out should be a last resort. It therefore reinstated the suit subject to payment of Kshs. 30,000/= costs to the 1st defendants within 30 days, failing which the dismissal would stand.

p. 3

Legal principles established

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  • A litigant bears personal responsibility to follow up with their counsel and push them to move a suit; communication breakdown is no excuse for want of prosecution.
  • Dismissal for want of prosecution should be a last resort; every party deserves to be given a hearing.

Court orders

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  1. 1.The application dated 10 March 2014 to reinstate the plaintiff's suit is allowed
  2. 2.The reinstatement is conditional on the plaintiff paying costs of Kshs. 30,000/= to the 1st defendants within 30 days
  3. 3.If the costs are not paid within that time frame, the order of 29 January 2014 dismissing the plaintiff's suit for want of prosecution will stand

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
Jurisdiction invoked
Order 17 Rule 2 of the Civil Procedure Rules; inherent discretion to reinstate a suit dismissed for want of prosecution

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, "Catherine C. Kittony v Jonathan Muindi & 2 other [2014] KEELC 122 (KLR)", Case Analysis (2014). ELC Case No. 446 of 2005 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/122/eng@2014-10-30

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