Kestem Company Ltd v Ndala Shop Limited & 2 others [2018] KEELC 1605 (KLR)
The bottom line
#The Environment and Land Court in Eldoret refused to reinstate a land suit dismissed after 10 years of inaction, ruling that website notice was valid and the delay inexcusable.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming firm of advocates was properly on record
The consent between the outgoing and incoming advocates complied with Order 9 Rule 9(b) and the firm is properly on record, notwithstanding that the consent was not endorsed by the court.
Order 9 Rule 9(b) permits change of advocate after judgment by court order or by consent between the outgoing advocate and the incoming advocate. A consent dated 23.4.2018 and filed 25.4.2018 between Chebii & Company and Kipsang & Mutahi Advocates satisfied the rule. Though not endorsed by the court, the requirements were strictly complied with.
Whether notice of the intention to dismiss the suit for want of prosecution was properly given
Notice given through the judiciary website and cause-list was adequate; the rule requires the court to 'give notice', not to serve it personally.
Order 17 Rule 2(1) grants the court power to dismiss a suit in which no step has been taken for one year, but requires notice to show cause. The rule uses 'give notice' rather than 'serve notice'. Following Fran Investments Ltd v G4S Security Services Ltd, the provision is permissive and discretionary, to be balanced against Article 159 demands for expeditious disposal. Publication on the website and cause-list sufficed.
Whether the delay was inordinate and excusable
The delay of 10 years before dismissal and 3 years before the reinstatement application were both inordinate and unexplained.
No letter to the Deputy Registrar about the missing file was exhibited; the file was available on request over the counter. The director was diabetic even when the suit was filed, was hospitalized for only 15 days in 2006, and took no steps after discharge. The company, having other directors, could have instructed counsel. Instead the plaintiff pursued the National Land Commission and returned only after failing there.
Whether setting aside the dismissal would be prejudicial to the defendants
The unexplained 10-year delay is itself a source of prejudice as it infringes Articles 47 and 159 of the Constitution on fair, expeditious administration of justice.
Failure to set down the suit for 10 years delayed justice contrary to Article 159, and affected the fair administration of justice protected by Article 47. Reinstatement after 18 years from filing, and 3 years after dismissal, would prejudice the respondents and the fair trial of the matter.
Legal principles established
#- Order 17 Rule 2(1) of the Civil Procedure Rules does not require personal service of the notice of dismissal; notice given through the judiciary website or cause-list is adequate.
- Change of advocates after judgment is validly effected by consent between the outgoing and incoming advocates under Order 9 Rule 9(b) even without court endorsement.
- A company cannot excuse inordinate delay in prosecuting its suit on the ground that one director was ill.
- Unexplained inordinate delay is a source of prejudice as it offends Articles 47 and 159 of the Constitution.
Court orders
#- 1.The application to set aside the ruling of 7.4.2015 dismissing the suit for want of prosecution and to reinstate the suit is dismissed
- Jurisdiction invoked
- Inherent powers under section 3A of the Civil Procedure Act and Order 17 Rule 2 and Order 9 Rule 9(b) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kestem Company Ltd v Ndala Shop Limited & 2 others [2018] KEELC 1605 (KLR)", Case Analysis (2018). ELC 95 of 2013 (formerly Eldoret HCCC No. 137 of 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1605/eng@2018-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.