Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (ELC suit, Kericho)· [2017] KEELC 229 (KLR)

Samuel Kinpngetich Koskei & another v Wilson Kipkorir Kipkato [2017] KEELC 229 (KLR)

Environment and Land Court
19 October 2017
JOJ. M ONYANGO
586 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to throw out a land case over a one-year delay, ruling the delay was not inordinate and the dispute deserved a full hearing.

What this practically means

#

Executive summary

#
This was a ruling on the defendant's Notice of Motion dated 6th March 2017, brought under Order 17 Rules 2(1) and 2(3) of the Civil Procedure Rules, seeking dismissal of the plaintiff's land suit for want of prosecution. The applicant's counsel, Musembi Ndolo, deponed that since pleadings closed on 26th January 2016, the plaintiff had taken no steps to fix the suit for hearing. The plaintiff's counsel, Zehrabanu Janmohamed, opposed, denying inordinate delay and emphasising that land matters should be heard on the merits. Counsel filed written submissions: the applicant invoked Article 159 of the Constitution and the overriding objective in sections 1A and 1B of the Civil Procedure Act; the respondent argued that a one-year delay was not inordinate. The court, Onyango J, followed Utalii Transport v NIC Bank, where eighteen months was held not to be inordinate delay, and applied the Ivita v Kyumbu test - whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay. Taking judicial notice that the court had no full-time ELC judge the previous year, which impeded expeditious fixing of hearings, and considering the sensitivity of land matters, the court found the delay not inordinate and disallowed the application. The parties were directed to comply with pre-trials within 30 days, and costs of the application were made costs in the cause.

Key legal issues

#
01

Whether a delay of approximately one year since close of pleadings constitutes inordinate delay justifying dismissal

Holding

A delay of one year is not inordinate, especially where the court lacked a full-time judge, and the suit should proceed to hearing on the merits.

Reasoning

The court adopted the Ivita v Kyumbu test: delay must be prolonged and inexcusable and justice must still be capable of being done. Following Utalii Transport v NIC Bank, eighteen months was held not inordinate, so one year a fortiori was not. Judicial notice was taken that the court had no full-time ELC judge the previous year, excusing the delay. The sensitivity of land matters favoured hearing on merits over dismissal.

p. 2

Legal principles established

#
  • The test for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay

Court orders

#
  1. 1.The defendant's application to dismiss the suit for want of prosecution is disallowed
  2. 2.Parties to comply with pre-trials within 30 days to pave way for expeditious disposal of the case
  3. 3.Costs of the application to be in the cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 17 Rules 2(1) and 2(3)
  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A and 1B

Cases cited (2)

  • Utalii Transport Company Limited and 3 Others V NIC Bank Limited & Another
    (2014) eKLR
  • Ivita V Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Order 17 Rules 2(1) and 2(3) of the Civil Procedure Rules; inherent discretion under sections 1A and 1B of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Samuel Kinpngetich Koskei & another v Wilson Kipkorir Kipkato [2017] KEELC 229 (KLR)", Case Analysis (2017). Not stated in judgment (ELC suit, Kericho). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/229/eng@2017-10-19

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