Paul Onyango Sule v Charanjit Singh Hayer & another [2018] KEELC 1580 (KLR)
The bottom line
#A court cannot dismiss a case for delay if it was already settled by a court-ordered agreement years earlier, and such a wrongful dismissal cannot be revived.
What this practically means
#Executive summary
#Key legal issues
#Whether a suit settled by consent and decreed can be dismissed for want of prosecution
It cannot; the notice to show cause, proceedings and dismissal order were all issued in error and are a nullity because no suit was pending after the consent order of 8th August 2011 and the decree of 13th December 2012
The record showed the suit was settled by a letter of consent dated 15th October 2009, adopted as an order of the court on 8th August 2011, and a decree issued on 13th December 2012. Once the suit was wholly settled and decreed, nothing remained pending to be dismissed for want of prosecution under Order 17 Rule 2, rendering the dismissal order a nullity incapable of being set aside or reinstated.
Whether the Plaintiff's unopposed application should be granted merely for want of a reply
No; even though no replying papers were filed, the court found on the record that the application could not be allowed because the order sought to be set aside was a nullity
Counsel for the Plaintiff urged that no replying papers had been filed and the application should be granted as prayed. However, the court examined the record and found the underlying suit had been settled and decreed years earlier, so the dismissal order was a nullity. An unopposed application still fails where, on the record and the law, the relief sought is incapable of being granted.
Service of the notice of motion
There was no evidence of service of the notice of motion upon counsel on record for the Defendant; no affidavit of service was on file, the affidavit filed concerning service of a hearing notice only
The court noted that although Plaintiff's counsel asserted on 11th February 2018 that the notice of motion had been served, he conceded no affidavit of service had been filed. On perusal of the record, no affidavit of service of the motion existed; the affidavit by James Otieno Okundo sworn and filed on 16th April 2018 related only to service of a hearing notice.
Legal principles established
#- Where a suit has been wholly settled by a consent order and a decree issued, no suit remains pending capable of being dismissed for want of prosecution; a dismissal order made in such circumstances is a nullity
Court orders
#- 1.The Plaintiff's notice of motion dated 13th November 2017 is dismissed with no orders as to costs
- 2.The suit remains settled in terms of the letter of consent dated 15th October 2009, filed on 13th July 2010 and adopted as an order of the court on 8th August 2011
- 3.The file is ordered closed
- On appeal from
- null
- null
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; application under the Civil Procedure Rules (Order 17 Rule 2 on notice to show cause for dismissal for want of prosecution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Onyango Sule v Charanjit Singh Hayer & another [2018] KEELC 1580 (KLR)", Case Analysis (2018). Notice of motion dated 13th November 2017 (suit filed 3rd May 2006; suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1580/eng@2018-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.