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ELCPartially AllowedNot stated in judgment· [2017] KEELC 1437 (KLR)

Registered Trustees of Kibera Solidale Italia Solidale v Mary Mutoro Sirengo [2017] KEELC 1437 (KLR)

High Court of Kenya
24 August 2017
628 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan High Court reinstated a dismissed lawsuit because the claimant's lawyer never received the dismissal notice, but warned the case must move forward immediately.

What this practically means

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Executive summary

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This is a ruling of the High Court at Kitale (Mwangi Njoroge J) delivered on 24th August 2017 on an application by the plaintiff seeking reinstatement of a suit dismissed for want of prosecution. The suit had been dismissed with no orders as to costs on 17th July 2016 pursuant to a Notice of Dismissal issued by the Deputy Registrar on 3rd June 2016, following a mention on 19th July 2016 at which neither party appeared. The applicant sought reinstatement of the suit, setting aside of the orders of 19th July 2016, and costs. It argued that it was unaware of the Notice of Dismissal, that its advocate never received it, that the court file was unavailable between 2013 and 2015 frustrating efforts to fix the suit for hearing, and that the failure to prosecute was not deliberate. The respondent opposed the application as incompetent, an abuse of process and made after inordinate delay, but only the applicant filed submissions, relying on Mwangi S. Kimenyi v Attorney General & another (2014 eKLR). The court held that where a court acts on its own motion to dismiss a suit, the Rules require that notice be served on the parties to show cause. Examining the record, the court found reliable indication that the Notice was sent to the addresses stated, but that neither party acknowledged final delivery, and the defendant also absented herself. Concluding that the plaintiff's counsel never received the Notice, the judge set aside the orders of 19th July 2016 and reinstated the suit, on condition that it be set down for hearing within 21 days failing which it would stand dismissed. No costs order was made.

Key legal issues

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01

Service of Notice of Dismissal

Holding

The court found the Notice of Dismissal was not delivered to the plaintiff's advocate, who therefore could not appear to show cause, justifying setting aside the dismissal

Reasoning

The plaintiff positively averred that the Notice was not received by the Advocate on record. The defendant was also absent on the dismissal date and said nothing about receipt of the Notice. Although the record indicated the Notice was sent to the addresses therein, neither party acknowledged final delivery. The court inclined to believe the plaintiff's counsel never received the notice, making the dismissal procedural failure rather than deliberate inaction.

p. 2
02

Reinstatement of suit dismissed for want of prosecution

Holding

A suit dismissed where notice of the dismissal was not received by the advocate may be reinstated in the interests of justice

Reasoning

The applicant showed that absence from the mention of 19th July 2016 was occasioned by non-receipt of the Notice of Dismissal, which was a circumstance beyond its control. Prior efforts to fix the suit for hearing between 2013-2015 were frustrated by the unavailability of the court file, showing the failure to prosecute was not deliberate. The court therefore set aside the dismissal orders and reinstated the suit, subject to a 21-day condition for setting it down for hearing.

p. 2

Legal principles established

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  • Where the court acts on its own motion to dismiss a suit for want of prosecution, notice must be furnished or served upon the parties to show cause why the suit should not be dismissed

Court orders

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  1. 1.The orders of the court made on 19/7/2016 dismissing the suit are set aside
  2. 2.The suit is reinstated
  3. 3.The suit to be set down for hearing within 21 days failing which it will stand dismissed

Authorities

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Legislation

  • Civil Procedure Rules (implied reference to dismissal for want of prosecution provisions)Not specified

Cases cited (1)

  • Mwangi S. Kimenyi versus Attorney General & another
    2014 eKLR
Jurisdiction invoked
Inherent power of the court to set aside its own orders / Civil Procedure Rules on dismissal for want of prosecution (not expressly cited in judgment)

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, "Registered Trustees of Kibera Solidale Italia Solidale v Mary Mutoro Sirengo [2017] KEELC 1437 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1437/eng@2017-08-24

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