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ELCAllowedELC Case No. 141 of 2014 (formerly ELC Case No. 666 of 2014)· [2018] KEELC 313 (KLR)

Basil Criticos v Third Engineering Bureau of China City Construction Group Company Limited [2018] KEELC 313 (KLR)

Environment and Land Court
19 December 2018
CYC. K. Yano
1,656 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Mombasa court reinstated a land suit dismissed after lawyers missed a hearing, ruling dismissal is a drastic step courts should use sparingly.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 18th December 2017 under Order 12 Rule 7 and Order 17 Rule 2(2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking to set aside the order of 16th October 2017 dismissing his suit for want of prosecution and to reinstate the suit. The Plaintiff explained that his advocates, Walker Kontos, received a notice to show cause dated 27th September 2017 and instructed Ms. Ameli Inyangu & Partners to hold their brief on 16th October 2017; counsel attended court but could not trace the matter on the cause list because the case number had changed from ELC No. 666 of 2014 (Nairobi) to ELC No. 141 of 2014 upon transfer. The Plaintiff also cited illness requiring treatment abroad and continuing loss from the Defendant's alleged trespass and unauthorised ballast mining on LR No. 10287-Taita. The Defendant opposed, contending the application lacked merit, that he was never served with summons or pleadings, and that the Plaintiff had taken no steps since filing in 2014. The court held that the service question was not for determination on this application, and confined itself to whether the dismissal order should be set aside. Applying the settled principles on dismissal for want of prosecution, and citing Mwangi S. Kimenyi v Attorney General & Another (2014) eKLR, the court found the delay neither inexcusable nor contumelious, accepted the explanation as reasonable, and found no substantial risk to fair trial or prejudice to the Defendant. It acknowledged the Plaintiff should have scrutinised the cause list given the transfer, but held reinstatement was the just course. The court set aside the dismissal order, reinstated the suit, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether the delay in prosecuting the suit and non-attendance at the notice to show cause hearing were excusable

Holding

The delay was not inexcusable or contumelious; the explanation - confusion over the changed case number upon transfer and counsel holding brief but unable to trace the matter on the cause list - was reasonable and accepted.

Reasoning

The court applied the settled principles for reinstatement applications. It found the plaintiff keen to prosecute the case, noting counsel had been instructed to hold brief and attended court but could not find the matter under its new number after transfer from Nairobi. It also found no substantial risk to fair trial or grave injustice to the defendant, and weighed the prejudice dismissal would cause the plaintiff against the delay.

p. 2
02

Whether service of summons on the defendant was a matter for determination in this application

Holding

The question whether summons to enter appearance were served was not for determination in this application; the only question was whether to set aside the dismissal and reinstate the suit.

Reasoning

The defendant argued the plaintiff was non-suited for lack of service of summons and pleadings. The court confined itself to the reinstatement question under Order 17 rule 2, holding that the service issue did not fall for decision on this application.

p. 1

Legal principles established

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  • The principles guiding dismissal of suits for want of prosecution include inordinate delay, whether the delay is intentional or contumelious, abuse of process, risk to fair trial or prejudice, prejudice to the plaintiff, reasonable explanation, and the interests of justice.
  • Dismissal of a suit is a draconian judicial act which should be done sparingly; courts should strive to sustain suits rather than dismiss them where justice can still be done.

Court orders

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  1. 1.The order issued on 16th October 2017 dismissing the suit is set aside
  2. 2.The suit is reinstated
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 17 Rule 2(2)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A

Cases cited (1)

  • Mwangi S. Kimenyi –v- Attorney General & Another
    (2014) eKLR
Jurisdiction invoked
Order 12 Rule 7 and Order 17 Rule 2(2) of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Basil Criticos v Third Engineering Bureau of China City Construction Group Company Limited [2018] KEELC 313 (KLR)", Case Analysis (2018). ELC Case No. 141 of 2014 (formerly ELC Case No. 666 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/313/eng@2018-12-19

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