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ELCPartially Allowed· [2018] KEELC 560 (KLR)

Integrated Development Programme Company Limited v Paul Itotia David (as personal representative ad litem of Mbatha Nzinga (deceased) & another ; Philip Kisanya Mweli & 9 others (Interested Party) [2018] KEELC 560 (KLR)

Environment and Land Court
23 November 2018
OAO.A. Angote
997 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a dismissed land suit because interested parties were never served with the dismissal application, but gave the plaintiff 90 days to set it down for hearing.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos on a Notice of Motion dated 18th January 2018 in which the Plaintiff sought injunction orders against the 1st Defendant in respect of land parcel L.R. No. 12751/634, and an order setting aside the ruling of 30th June 2017 dismissing the Plaintiff's suit for want of prosecution. The suit, commenced on 12th March 2007, involved competing sale agreements over the suit land, with the Defendants filing a Defence and Counter-claim and Interested Parties later being joined. The Plaintiff's advocate explained the delay by citing the absence of an ELC Judge in Machakos between 2012 and 2016 and claimed the Interested Parties and 2nd Defendant were not served with the dismissal application. The 1st Defendant maintained the suit was procedurally dismissed after four years of inaction. The court found that the absence of an ELC Judge did not excuse the delay, since High Court Judges continued hearing land matters until August 2015 when the Court of Appeal's decision in Karisa Chengo stopped them. However, the court held that the Interested Parties, who had a distinct advocate, were not served with the dismissal application, and on that basis reinstated the suit. The application was allowed with no order as to costs, conditional on the suit being fixed for hearing within ninety days.

Key legal issues

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01

Whether non-service of the dismissal application on Interested Parties justified reinstatement

Holding

The suit was reinstated because the Interested Parties, who had their own advocate, were not served with the application to dismiss the suit

Reasoning

The court found that although the Plaintiff's advocate was duly served with the dismissal application and hearing notice, there was no evidence the Interested Parties were notified. Since they had a distinct advocate and interests in the suit land, fairness required service on them. Their non-service rendered the dismissal procedurally defective, warranting reinstatement.

p. 2
02

Whether the absence of an ELC Judge in Machakos excused the delay in prosecuting the suit

Holding

The contention failed because High Court Judges continued hearing land matters until the Court of Appeal's decision in Karisa Chengo in 2015

Reasoning

The court acknowledged there was no ELC Judge in Machakos between 2012 and 2016, but noted that High Court Judges heard and determined land matters until August 2015, when the Court of Appeal in Karisa Chengo stopped them. Justice Kariuki heard land matters until May 2015. The plaintiff's excuse therefore did not hold.

p. 2

Legal principles established

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  • Interested Parties with a distinct advocate from the plaintiff's advocate are entitled to be served with an application to dismiss the suit before it is dismissed for want of prosecution

Court orders

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  1. 1.The Application dated 18th January 2018 is allowed with no order as to costs
  2. 2.The suit is reinstated on condition that it is fixed for hearing within ninety (90) days from the date of the Ruling, excluding vacation days

Authorities

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Cases cited (1)

  • Karisa Chengo & 2 others vs. Republic
    (2015) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the reinstatement of a dismissed land suit

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, "Integrated Development Programme Company Limited v Paul Itotia David (as personal representative ad litem of Mbatha Nzinga (deceased) & another ; Philip Kisanya Mweli & 9 others (Interested Party) [2018] KEELC 560 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/560/eng@2018-11-23

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