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ELCPartially AllowedNairobi HCCC Misc. Suit No. 184 of 1991 (formerly Nairobi High Court Misc. Suit No. 184 of 1991), consolidated with ELC No. 293 of 2016· [2017] KEELC 3339 (KLR)

Simon Thuo Muhia & another v Dellian Langata Limited [2017] KEELC 3339 (KLR)

Environment and Land Court
24 January 2017
SOS. Okong'o
1,372 words in judgment
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The bottom line

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A Kenyan court revived a 1991 land suit dismissed for inaction, holding that two merged cases must be handled together, not dismissed separately.

What this practically means

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Executive summary

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The plaintiffs filed this Originating Summons on 19th March 1991 (formerly Nairobi High Court Misc. Suit No. 184 of 1991) seeking extension of caveats registered against LR No. 3591/22 and LR No. 3591/23, asserting a valid agreement for sale dated 5th February 1988 with the defendant whose specific performance they sought. On 30th July 1991 the suit was consolidated with Nairobi HCCC No. 1561 of 1991 (now ELC No. 293 of 2016), the main suit seeking specific performance, which went part heard before Muchelule J before his transfer. On 23rd February 2015 this suit was dismissed by the court on its own motion for want of prosecution after the plaintiffs failed to appear on a notice to show cause. The plaintiffs moved by Notice of Motion dated 26th February 2015 to set aside that dismissal, explaining that their advocate was engaged in the Court of Appeal on the material day and that the suit, being consolidated with the part-heard ELC No. 293 of 2016, could not be fixed singly for hearing. The defendant opposed, citing inordinate delay and prejudice. Okong'o J held that under Order 51 Rule 15 of the Civil Procedure Rules and section 3A of the Civil Procedure Act the court could set aside an ex parte order, that the plaintiffs had given a reasonable explanation for non-attendance and convincing reasons for the delay, and that a consolidated suit cannot be severed and dismissed singly while the other remains pending. The application dated 26th February 2015 was allowed in terms of prayers 2 and 3. The plaintiff was directed to set down both suits for mention for directions within 60 days, failing which both suits would stand dismissed with costs. Costs of the application were made costs in the cause. Judgment delivered at Nairobi on 24th January 2017 by S. Okong'o J.

Key legal issues

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01

Setting aside an ex parte order of dismissal for want of prosecution

Holding

The court has power under Order 51 Rule 15 of the Civil Procedure Rules and section 3A of the Civil Procedure Act to set aside an order made in the absence of a party, and the discretion is exercised judiciously in favour of a party who offers a reasonable explanation for non-attendance and shows the suit ought not to have been dismissed

Reasoning

The order of 23rd February 2015 was made in the absence of the plaintiffs after a notice to show cause. Order 51 Rule 15 confers power to set aside ex parte orders, and section 3A donates inherent power to make orders necessary for the ends of justice. The discretion must be exercised judiciously, not capriciously, to ensure justice between the parties.

p. 3
02

Effect of consolidation on dismissal of one consolidated suit

Holding

A consolidated suit cannot be severed and dismissed singly while the other consolidated suit remains pending; where both suits stand together, a party cannot be faulted for failing to fix one of them for hearing separately

Reasoning

This suit had been consolidated with ELC No. 293 of 2016, which was part heard before Muchelule J and awaiting typed proceedings and directions. The defendant did not deny the consolidation or the part-heard status. Had the court's attention been drawn to these facts, the suit would not have been dismissed; consolidation precludes severing one suit for dismissal.

p. 3
03

Alleged inordinate delay by the plaintiffs

Holding

The defendant's contention of inordinate delay failed because the defendant did not explain how the plaintiffs could have listed the suit for hearing before directions were given in the consolidated, part-heard suit

Reasoning

The plaintiffs gave convincing reasons for the delay in prosecution: the suit was consolidated with a part-heard matter whose proceedings were being typed and on which directions were awaited. The defendant's replying affidavit did not dispute these facts, so the delay objection did not answer the application.

p. 3

Legal principles established

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  • Once a case has been consolidated with another, it cannot be severed for dismissal while the other is left pending
  • The court's discretionary powers under section 3A of the Civil Procedure Act and Order 51 Rule 15 of the Civil Procedure Rules must be exercised judiciously and not capriciously, with the aim of doing justice to the parties

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 26th February 2015 is allowed in terms of prayers 2 and 3 thereof, setting aside the order of dismissal of 23rd February 2015
  2. 2.The plaintiff to set down ELC No. 293 of 2016 and this suit for mention for directions within 60 days from the date of the ruling, failing which the two suits shall stand dismissed with costs
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 51 Rule 15
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 51 Rule 15 of the Civil Procedure Rules (inherent power and power to set aside ex parte orders)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Simon Thuo Muhia & another v Dellian Langata Limited [2017] KEELC 3339 (KLR)", Case Analysis (2017). Nairobi HCCC Misc. Suit No. 184 of 1991 (formerly Nairobi High Court Misc. Suit No. 184 of 1991), consolidated with ELC No. 293 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3339/eng@2017-01-24

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