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ELCDismissed· [2018] KEELC 1117 (KLR)

Charo Shuhuli Randu v Karisa Nzai & another [2018] KEELC 1117 (KLR)

Environment and Land Court
31 October 2018
JOJ. O. Olola
1,846 words in judgment
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The bottom line

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A Kenyan court refused to revive a land suit dismissed for four years of inactivity, confirming that litigants cannot blame their advocates for sleeping on their own cases.

What this practically means

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Executive summary

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The Plaintiff filed suit on 2 January 2013 seeking a permanent injunction restraining the Defendant from dealing with an unsurveyed portion of land curved from Portion No. 245 Malindi, and obtained interim injunction orders. The file lay dormant for years; a Notice to Show Cause why the suit should not be dismissed for want of prosecution was issued on 21 March 2017, and on 13 July 2017, with neither the Plaintiff nor his advocate in court, the suit was dismissed under Order 17 Rule 2 of the Civil Procedure Rules, 2010. The Plaintiff then applied on 31 October 2017 for a temporary injunction and for review/setting aside of the dismissal order, blaming his former advocate. The 2nd Defendant opposed, citing inordinate delay and the litigant's duty to pursue his case. Justice Olola applied the classic discretionary principles in Shah v Mbogo and Patel v EA Cargo Handling Services, together with Kimaru J's observation in Savings & Loans Ltd v Susan Wanjiru Muritu that a case belongs to the litigant and not the advocate, and Gikonyo J's dictum in Fran Investment Ltd v G4S Security Services on the constitutional imperative of expeditious disposal under Article 159. Finding the Plaintiff indolent, having taken no steps to prosecute his case since 2013 and having moved only some three months after dismissal upon realising the 2nd Defendant had resumed construction, the court declined to exercise its discretion in his favour. The application dated 31 October 2017 was dismissed with costs to the 2nd Defendant, dated, signed and delivered at Malindi on 31 October 2018.

Key legal issues

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01

Whether to set aside dismissal for want of prosecution

Holding

The application was dismissed; the Plaintiff was indolent and only moved after realising the 2nd Defendant had resumed construction

Reasoning

The court traced the history of inactivity from March 2013, noted service of the Notice to Show Cause on the Plaintiff's advocate, and applied the Shah v Mbogo and Savings & Loans principles that a litigant must diligently pursue the case and cannot blame counsel's mistakes to revive a dismissed suit.

p. 2

Legal principles established

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  • The discretion to set aside ex-parte judgments is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to reward deliberate delay
  • A case belongs to the litigant, not the advocate; the litigant has a duty to pursue prosecution of the case

Court orders

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  1. 1.The application dated 31st October 2017 is dismissed
  2. 2.Costs of the application awarded to the 2nd Defendant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 17 Rule 2
  • Civil Procedure Rules, 2010Order 11
  • Constitution of Kenya, 2010Article 159

Cases cited (4)

  • Patel –vs- EA Cargo Handling Services Ltd
    (1974) EA 75
  • Shah –vs- Mbogo
    (1967) EA 166
  • Savings & Loans Ltd –vs- Susan Wanjiru Muritu
    (Nairobi) (Milimani) HCCC No. 397 of 2002
  • Fran Investment Ltd –vs- G4S Security Services Ltd
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction; application under review/judgment jurisdiction of the court (Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Charo Shuhuli Randu v Karisa Nzai & another [2018] KEELC 1117 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1117/eng@2018-10-31

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