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ELCDismissedE & L No. 229 of 2017 (formerly Civil Case No. 92 of 1997, High Court at Embu)· [2018] KEELC 1941 (KLR)

Peter Ndeke Mate v Zakaria Nkune & 8 others [2018] KEELC 1941 (KLR)

Environment and Land Court
19 September 2018
PNP. M. Njoroge
4,795 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A landowner who let his case sit idle for 21 years lost his bid to revive it, and must pay the other side's legal costs.

What this practically means

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Executive summary

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The plaintiff, Peter Ndeke Mate, moved the Environment and Land Court at Chuka by notice of motion dated 27th April, 2018 seeking, under order 10 Rule 11 and section 3A of the Civil Procedure Act, the setting aside and review of orders dismissing his suit (E & L No. 229 of 2017, formerly Civil Case No. 92 of 1997 in the High Court at Embu) for want of prosecution on 21st March, 2018, and reinstatement of the suit for hearing. The suit concerned a land dispute over property the plaintiff occupied, with inhibition orders in his favour since 2nd July, 2001. The applicant attributed the delay to an arbitration process by community elders stalled by deaths, the death of some defendants pending substitution, and the conduct of his former advocates, and asserted he had complied with order 11 shortly before dismissal. The defendants, through their advocate Joe Kathungu, opposed, contending the application was an abuse of process, the delay of 21 years was inordinate and unexplained, no evidence of arbitration existed, substitution of deceased defendants was the plaintiff's duty, and reliance on counsel's inaction was untenable, citing Rajesh Rughani vs Fifty Investments Limited. The court agreed with the respondents: the arbitration excuse was nebulous with no proceedings or court order produced; substitution was the litigant's responsibility; and blaming former advocates does not excuse a litigant's duty to prosecute diligently. The court found the plaintiff had taken advantage of the 17-year-old inhibition orders and was intent on obstructing justice. The application was dismissed with costs to the defendants/respondents.

Key legal issues

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01

Whether sufficient reason existed to set aside the dismissal of the suit for want of prosecution and reinstate it

Holding

The application for reinstatement was dismissed; the applicant's excuses for the delay were unconvincing and his conduct showed intent to obstruct the course of justice

Reasoning

The court found the claimed arbitration nebulous with no proceedings or court order produced; the death of defendants was not an excuse since substitution is the litigant's duty; and blaming former advocates does not avail a litigant. The plaintiff had enjoyed inhibition orders for 17 years while the suit remained unheard for 21 years, and his inaction portrayed disinterest in prosecuting the case.

p. 7

Legal principles established

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  • A court of law may, on proper facts and circumstances, set aside its dismissal of a case
  • Where a litigant has been indolent, a court should not exercise its judicial discretion to reinstate a case
  • It is the litigant's duty, not the advocate's, to ensure the suit is prosecuted diligently and necessary substitutions effected

Court orders

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  1. 1.The application dated 27th April, 2018 is dismissed
  2. 2.Costs are awarded to the defendants/respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(b)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 63(e)
  • Civil Procedure Actsections 1A and 1B
  • Civil Procedure Rules 2010order 10 Rule 11
  • Civil Procedure Rules 2010order 17 Rule 2

Cases cited (6)

  • Belinda Murai & others vs Amoi Wainaina
    (1978)
  • Rawal While vs Mombasa Hardware Ltd
    [1968] EA 392
  • ET Monks & Company Ltd vs Evans
    [1985] 584
  • Agip (K) Ltd vs Highlands Tyres Ltd
    [2001] KLR 630
  • Ivita vs Kyumba
    [1984] KLR 441
  • Rajesh Rughani vs Fifty Investments Limited & Another
    (2016) eKLR
Jurisdiction invoked
Inherent powers of the court under section 3A of the Civil Procedure Act; order 10 Rule 11 and order 17 Rule 2 of the Civil Procedure Rules 2010

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, "Peter Ndeke Mate v Zakaria Nkune & 8 others [2018] KEELC 1941 (KLR)", Case Analysis (2018). E & L No. 229 of 2017 (formerly Civil Case No. 92 of 1997, High Court at Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1941/eng@2018-09-19

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