Willis Ochieng Odhiambo v Kenya Tourist Development Corporation & another [2018] KEELC 206 (KLR)
The bottom line
#Kenya's Environment and Land Court reinstated a dismissed land suit because the wrong lawyers were served with the dismissal notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be reinstated after dismissal for want of prosecution
The dismissal order was set aside because counsel on record was never served with the notice to show cause and the Plaintiff had a reasonable explanation for the delay
The last step in the suit was fixing a hearing date on 10th December 2014, with the matter set for hearing on 7th May 2015. Between then and the issue of the notice on 9th March 2017, about one year and ten months lapsed. However, the notice was addressed to the wrong advocates - the Plaintiff's counsel on record, M/s Bosire Gichana, was not served, nor was the 2nd Defendant's counsel. Undisputed correspondence with the Deputy Registrar about the file's whereabouts showed a reasonable explanation existed. Setting aside the order served substantive justice without prejudice to the 1st Defendant.
Whether failure to cite the enabling statutory provision in the application is fatal
Not fatal, since the substance of the application is apparent from its body
Applying Article 159(2)(d), Sections 1A and 1B of the Civil Procedure Act and Order 51 Rule 10, the court held that substantive justice should not be defeated by technicalities. The Supreme Court's decision in Hermanus Phillipus Steyn was invoked to show that procedural provisions should not be interpreted as cast in stone. The failure to cite the enabling provisions was therefore excused.
Whether reinstatement would prejudice the 1st Defendant
No reasonable apprehension of prejudice was demonstrated
The court found no evidence that allowing the application would prejudice the 1st Defendant's case. The absence of prejudice, coupled with the denial of the Plaintiff's opportunity to be heard, weighed in favour of setting aside the dismissal order and reinstating the suit for hearing.
Legal principles established
#- Failure to cite the enabling provisions of the law in a notice of motion is not fatal where the substance of the application is apparent
- A party's counsel on record must be served with a notice to show cause under Order 17 Rule 2 before dismissal for want of prosecution, otherwise the party is denied an opportunity to be heard
Court orders
#- 1.That the order of 11th April 2017, dismissing the Plaintiff's suit be, and is hereby set aside and the suit reinstated for hearing
- 2.That costs of the application be in the cause
- Jurisdiction invoked
- Inherent powers of the court; Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act, Chapter 21; application for review under Order 17 Rule 2 and Order 51 Rule 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Willis Ochieng Odhiambo v Kenya Tourist Development Corporation & another [2018] KEELC 206 (KLR)", Case Analysis (2018). Notice of motion dated 22nd November 2017 (suit details not stated in the judgment excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/206/eng@2018-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.