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ELCAllowedNot stated in the ruling· [2017] KEELC 92 (KLR)

Stephen Kipsang Rutto t/a Springwood College v Tanui Kipkurui & 2 others [2017] KEELC 92 (KLR)

High Court of Kenya
3 November 2017
JOJ.M. ONYANGO
897 words in judgment
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The bottom line

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Kenya's High Court reinstated a suit dismissed for non-attendance, ruling that dismissing a case without a hearing is drastic and prejudice must be specifically proven.

What this practically means

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Executive summary

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This ruling by J.M. Onyango, Judge, determines the plaintiff's Notice of Motion dated 4th July 2017, brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 12 Rule 7 of the Civil Procedure Rules and Articles 40, 47 and 50 of the Constitution, seeking to set aside the court's order of 28th February 2017 dismissing the suit for non-attendance. The plaintiff explained that his former advocate's failure to attend was inadvertent, that he was never informed of the hearing date, and that he only learned of the dismissal on 5th June 2017 when perusing the court file. He asserted that the suit raised triable issues. The defendant opposed, contending that the plaintiff had not prosecuted the suit diligently since 2013, that the advocate was served with a hearing notice, and that the application was an abuse of process intended to delay justice. Applying the six principles from Mwangi S. Kimenyi v Attorney General (citing Utalii Transport Co v NIC Bank), the court held that the ten-month delay before setting the suit down was not inordinate, the plaintiff's explanation was reasonable, and the defendant had not demonstrated the specific substantial prejudice required. The court set aside the dismissal, directed that the suit be set down for hearing within 45 days, and ordered the plaintiff to bear the costs of the application for having occasioned the defendant inconvenience.

Key legal issues

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01

Whether the dismissal of the plaintiff's suit for non-attendance should be set aside and the suit reinstated

Holding

The application has merit; the dismissal order is set aside because the delay of about ten months was not inordinate, the plaintiff's explanation for non-attendance was reasonable, and the defendant showed no substantial prejudice.

Reasoning

The court applied the six principles in Mwangi S. Kimenyi v Attorney General & Kenya Institute for Public Policy and Research (citing Utalii Transport Co & 3 Others v NIC Bank & Another). It found the ten-month delay not inordinate, accepted the plaintiff's explanation of his former advocate's inadvertence and lack of notice of the hearing date, and held that the defendant had not demonstrated any substantial prejudice such as impeding justice, aggravated costs or specific hardship. Reinstatement best served the interest of justice and access to justice under Articles 159 and 50.

p. 2

Legal principles established

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  • A general assertion of prejudice is insufficient; the defendant must show specific substantial prejudice resulting from reinstatement of a dismissed suit.
  • Dismissal of a suit without hearing it on the merits is a draconian act and setting it aside is a matter of judicial discretion to be exercised judiciously.

Court orders

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  1. 1.The order issued on 28th February 2017 dismissing the suit is set aside
  2. 2.The suit to be set down for hearing within 45 days from the date of the ruling
  3. 3.The plaintiff to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure RulesOrder 12 Rule 7
  • Constitution of Kenya 2010Articles 40, 47, 50, 159

Cases cited (2)

  • Mwangi S. Kimenyi V Attorney General & Kenya Institute for Public Policy and Research
    2014 eKLR
  • Utalii Transport Co & 3 Others V NIC Bank & Another
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules; Articles 40, 47 and 50 of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Stephen Kipsang Rutto t/a Springwood College v Tanui Kipkurui & 2 others [2017] KEELC 92 (KLR)", Case Analysis (2017). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/92/eng@2017-11-03

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