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ELCAllowedNotice of Motion dated 4/5/2016 (suit filed 20/12/2007)· [2017] KEELC 1954 (KLR)

Sukhdev Sign Sidhu (suing in his capacity as the Administrator of the Estate of Kehar Singh Sidhu (deceased) v Kuldip Singh & Harmider Kaur w/o Kuldip Singh t/a Hill Top Primary School Tigoni [2017] KEELC 1954 (KLR)

Environment and Land Court
31 August 2017
1,092 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land suit because the plaintiff never received the written notice the law requires before dismissal.

What this practically means

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Executive summary

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By a Notice of Motion dated 4/5/2016, the plaintiff sought reinstatement of a land suit dismissed by Angote J on 29/5/2015 for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules. The plaintiff argued that the dismissal was premature because his previous advocates had taken a step towards prosecution (a request for pretrial conference filed on 15/10/2014) within a year of the dismissal. The defendants contended they were unaware of such steps and that the notice to show cause was addressed to the respective law firms on record. Reviewing the court file, Eboso J observed that the plaintiff had diligently set the suit down for hearing on several dates between 2009 and 2013, but no proceedings were taken on any of those dates. The court examined the Notice to Show Cause issued on 7/5/2015 and found no evidence that it was served on the plaintiff's then advocates, Ogolla Okello & Co. Advocates. Further, the cause list for 29/5/2015 incorrectly captured which firm acted for which party and was held to be misleading. The court held that written notice to the parties under Order 17 Rule 2(1) is a mandatory requirement before a dismissal order can issue, and in its absence the dismissal ought to be set aside. Exercising its discretion under Section 3A of the Civil Procedure Act and Order 51 Rule 15, the court allowed the application in terms of Prayers 1 and 2, reinstating the suit, with no order as to costs. Judgment was delivered at Nairobi on 31 August 2017.

Key legal issues

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01

Whether the suit was properly dismissed for want of prosecution under Order 17 Rule 2(1)

Holding

The dismissal was irregular because there was no evidence of written notice to the plaintiff or his advocates; the notice to show cause was served only on the defendants' advocates and the cause list was misleading.

Reasoning

Order 17 Rule 2(1) requires the court to give written notice to the parties before dismissing a suit for want of prosecution. The court found no evidence of service on the plaintiff's then advocates, Ogolla Okello & Co. Advocates, and the day's cause list incorrectly captured which firm acted for which party, so it could not amount to proper notice. In the absence of compliance with the mandatory notice requirement, the dismissal order ought not to have issued and should be set aside.

p. 2
02

Whether the court's discretion to set aside the dismissal should be exercised in the plaintiff's favour

Holding

Yes. The court invoked its inherent jurisdiction under Section 3A and Order 51 Rule 15, exercising the discretion judiciously in pursuit of the overriding objective.

Reasoning

The court noted it would have applied the Mbogo & Another v Shah principle on setting aside ex parte orders had the notice requirements been satisfied. Since there was no evidence that written notice was given to the plaintiff as required, the dismissal order fell to be set aside without needing to reach that enquiry.

p. 2

Legal principles established

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  • Written notice to the parties to show cause why a suit should not be dismissed for want of prosecution is a mandatory requirement under Order 17 Rule 2(1) that must be satisfied before a dismissal order can issue.

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 4/5/2016 seeking reinstatement of the suit is allowed in terms of Prayers 1 and 2
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)
  • Constitution of Kenya 2010Article 165
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure RulesOrder 51 Rule 15

Cases cited (1)

  • Mbogo & Another Vs Shah
    (EALR) 1908
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010 read with Section 3A of the Civil Procedure Act and Order 51 Rule 15 of the Civil Procedure Rules

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, "Sukhdev Sign Sidhu (suing in his capacity as the Administrator of the Estate of Kehar Singh Sidhu (deceased) v Kuldip Singh & Harmider Kaur w/o Kuldip Singh t/a Hill Top Primary School Tigoni [2017] KEELC 1954 (KLR)", Case Analysis (2017). Notice of Motion dated 4/5/2016 (suit filed 20/12/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1954/eng@2017-08-31

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