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ELCDismissed· [2014] KEELC 423 (KLR)

Peter Ndungu Joseph Njoroge v Lazaro Mugo Munyi [2014] KEELC 423 (KLR)

High Court of Kenya
8 April 2014
PNP. Nyamweya
1,883 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by P. Nyamweya, J of the High Court at Nairobi, dated 8th April 2014, determined a Notice of Motion dated 23rd April 2013 brought by the Plaintiff under Order 12 Rules 3 and 7 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking to set aside orders of 27th January 2012 dismissing the suit for want of prosecution and to reinstate it for hearing. The Plaintiff's advocate attributed the dismissal to his non-attendance on the hearing date, having sent his clerk to secure another advocate to hold his brief, and urged that his mistake should not be visited on the Plaintiff. The Defendant opposed, contending the Plaintiff had been indolent since 2010 and that the application, filed 15 months after dismissal, evidenced inordinate and unexplained delay. The court framed the sole issue as whether there had been inordinate delay without reasonable explanation rendering the suit liable to dismissal. Applying the Ivita v Kyumbu test, the court found the suit had last been in court on 24th July 2009, over three years before the notice to show cause was heard, and that no cause had been advanced for reinstatement. The Plaintiff's explanation addressed only his non-attendance on 27th January 2012 and was contradicted by the record, which showed no appearance by either party. The court further held the application defective, as it was brought under provisions relating to dismissal for non-attendance, whereas the suit had been dismissed for want of prosecution under Order 17 Rule 2. The Notice of Motion was dismissed with costs to the Plaintiff's account.

Key legal issues

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01

Whether the suit dismissed for want of prosecution should be reinstated

Holding

The application for reinstatement fails because the Plaintiff offered no cause for the over-three-year delay in prosecuting the suit, and the court record shows no appearance by either party on the date the notice to show cause was heard

Reasoning

The court applied the Ivita v Kyumbu test and found the delay of over three years since 24th July 2009 was prolonged and unexplained. The Plaintiff's advocate's affidavit only explained his non-attendance on 27th January 2012, not the earlier inaction, and his assertion that an advocate held his brief was contradicted by the court record showing no appearance for either party. Further, the application was brought under Order 12 Rules 3 and 7, which concern dismissal for non-attendance, whereas the suit was dismissed for want of prosecution under Order 17 Rule 2, rendering the application defective.

p. 3

Legal principles established

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  • The Ivita v Kyumbu test applies in applications for dismissal of suit for want of prosecution: whether the delay is prolonged and inexcusable, and if excusable, whether justice can still be done despite the delay
  • It is the Plaintiff's duty to bring the suit to early trial, and he cannot absolve himself of this duty by claiming the Defendant consented to the delay

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 23rd April 2013 is dismissed
  2. 2.The Plaintiff shall meet the costs of the said Notice of Motion

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 3 and 7
  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure Actsection 3A
  • Constitution of KenyaArticle 40

Cases cited (8)

  • City Council of Nairobi -vs- Oss-Chemie K Ltd
    Civil Suit No 280 (A) of 2009
  • Edward Juma Malovi -vs- Peter Ndirangu
    (2006) eKLR
  • Chemwolo & anor -vs- Kubende
    (1986) KLR 492
  • Ceres Estate Ltd -vs- Kieran Day & 4 Others
    (2013) eKLR
  • Omar Said -vs- Attorney General
    (2005) eKLR
  • Hotwax Hotels Ltd -vs- Nairobi City Council
    (2005) eKLR
  • Ivita vs. Kyumbu
    [1984] KLR 441
  • Mukisa Biscuit Manufacturing -vs- West End Distributors
    (1969) EA 969
Jurisdiction invoked
Order 12 Rule 3 and 7 and section 3A of the Civil Procedure Act; Order 17 Rule 2 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Ndungu Joseph Njoroge v Lazaro Mugo Munyi [2014] KEELC 423 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/423/eng@2014-04-08

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