Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedCase No 399 of 2013· [2017] KEELC 401 (KLR)

Lally Farm Limited v Attorney General & 4 others [2017] KEELC 401 (KLR)

Environment and Land Court
8 December 2017
DOD. O. Ohungo
1,985 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan land suit stayed dead after a two-year, unexplained delay in seeking reinstatement, and the defendants' review application auto-dismissed for late filing.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Nakuru (D. O. Ohungo, J) disposed of two applications arising from the dismissal of the plaintiff's suit on 16th May 2014 for want of prosecution. The 4th and 5th defendants' Notice of Motion dated 31st July 2014, brought under Order 45 of the Civil Procedure Rules, sought review of the ruling of 16th May 2014 and the removal of cautions over land parcels Nakuru/Moi Ndabi/1322 and 1267. The plaintiff's Notice of Motion dated 26th August 2016, under Order 10 rule 11, sought reinstatement of the dismissed suit and its consolidation with Nakuru E&L Petition No. 30 of 2013. Both applications were heard together by written submissions. The 4th and 5th defendants failed to file submissions within 7 days as directed on 25th July 2017 under a default clause, filing only on 15th September 2017; their application therefore stood dismissed with costs on 2nd August 2017 and was not considered on the merits. On the plaintiff's application, the court applied the principles in Mbogoh & Another v Shah as reiterated in James Kanyiita Nderitu, distinguishing regular from irregular default. Affidavit evidence, including a hearing notice bearing the plaintiff's advocates' date stamp of 25th November 2013 and an affidavit of service by Henry Mugo, established due service. The court found inordinate, unexplained delay of over two years in moving to set aside the dismissal and no disclosure of when the plaintiff learnt of it. Both applications were dismissed with each party bearing its own costs.

Key legal issues

#
01

Consequence of failure to comply with a court direction with a default clause

Holding

The 4th and 5th defendants' application for review stood dismissed with costs for failing to file submissions within the 7 days allowed, so the court did not consider it on the merits.

Reasoning

On 25th July 2017 the court, expressing displeasure at prior non-compliance, indulged the 4th and 5th defendants with 7 days to file and serve submissions, default whereof the application would stand dismissed with costs. They filed on 15th September 2017, beyond the 1st August 2017 deadline, so the dismissal took effect on 2nd August 2017 and no merits consideration was necessary.

p. 2
02

Whether the dismissal of the suit should be set aside and the suit reinstated

Holding

The application failed: service on the plaintiff's advocates was clearly proved, there was no sound basis for exercising the discretion, and the application was brought two years after dismissal with no explanation for the delay.

Reasoning

The plaintiff sought setting aside of the orders of 16th May 2014 dismissing the suit for want of prosecution. The court applied the principles in Mbogoh & Another v Shah as reiterated in James Kanyiita Nderitu, distinguishing regular from irregular default. Since the hearing notice bore the plaintiff's advocates' date stamp of 25th November 2013 and an affidavit of service was filed, the dismissal was regular. Inordinate, unexplained delay of over two years and lack of disclosure of when the plaintiff learnt of the dismissal defeated the application.

p. 4

Legal principles established

#
  • A regularly-entered default judgment may only be set aside in the court's discretion, taking into account reason for failure, delay, prejudice and the interest of justice; an irregularly-entered one is set aside as of right
  • Where orders were made after due service, a sound basis must be laid before the discretion to set aside is exercised
  • Litigants and counsel are obliged under sections 1A and 1B of the Civil Procedure Act to comply promptly with court directions, as court orders are not made in vain

Court orders

#
  1. 1.4th and 5th defendants' Notice of Motion dated 31st July 2014 dismissed
  2. 2.Plaintiff's Notice of Motion dated 26th August 2016 dismissed
  3. 3.Each party to bear own costs

Authorities

#

Legislation

  • Civil Procedure Actsections 1A and 1B
  • Civil Procedure RulesOrder 45
  • Civil Procedure RulesOrder 10 rule 11

Cases cited (5)

  • Mbogoh & Another v. Shah
    [1968] EA 93
  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR
  • Patel v. E.A. Cargo Handling Services Ltd
    (1975) EA 75
  • Chemwolo & Another v. Kubende
    [1986] KLR 492
  • CMC Holdings v. Nzioki
    [2004] 1 KLR 173
Jurisdiction invoked
Order 45 and Order 10 rule 11 of the Civil Procedure Rules; sections 1A and 1B of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Lally Farm Limited v Attorney General & 4 others [2017] KEELC 401 (KLR)", Case Analysis (2017). Case No 399 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/401/eng@2017-12-08

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