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ELCAllowedNot stated in the judgment

Mugo Riakathari v Muthike Miano & 2 others [2018] KEELC 2007 (KLR)

High Court of Kenya
20 July 2018
SMS.N. Mukunya
460 words in judgment
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The bottom line

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Kenya's High Court reinstated a suit dismissed for want of prosecution because no proof of service of the dismissal notice was on file, showing missing service affidavits can undo dismissals.

What this practically means

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Executive summary

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The applicant sought reinstatement of his suit, dismissed for want of prosecution on 6th December 2016 after it was listed before the court for dismissal in the absence of the applicant and his counsel, Magee Wa Magee advocate. Counsel argued the 2014 suit was not stale, pre-trial directions under Order II of the Civil Procedure Rules had not been taken, the suit was not ripe for dismissal, and reinstatement would not prejudice the respondent. The 1st and 3rd defendants opposed, arguing that notices to show cause dated 23rd November 2016 had been sent to the parties and their advocates, that they attended on the dismissal date while the plaintiff's advocate did not, that no reasons justified reinstatement, and that the principle that a mistake of counsel should not be visited on the client is archaic and that clients must bear responsibility for their counsel's inaction. The court perused the file and found the two notices for dismissal still in the file with no affidavit of service by the process server. It concluded there was a possibility the applicant and his counsel were not served, explaining their absence. On that basis alone the court allowed the application, reinstated the dismissed suit, directed fast-tracking through compliance with Order II within 60 days failing which the suit would stand dismissed again, and directed the parties to fix the suit for hearing. No order as to costs was made.

Key legal issues

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01

Whether the dismissal for want of prosecution should be set aside

Holding

The dismissal was set aside because the court file contained no affidavit of service of the notices to show cause, raising a possibility the applicant and his counsel were not served.

Reasoning

The court perused the file and found two notices for dismissal dated 23rd November 2016 still in the file, with no affidavit of service by the process server. The absence of proof of service meant the applicant's non-attendance on 6th December 2016 was possibly not his fault. On that basis alone the court allowed reinstatement, notwithstanding the respondents' argument that mistake of counsel should be visited on the client.

p. 2

Legal principles established

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  • Where there is no affidavit of service on file and a possibility that a party was not served with a notice to show cause, the resulting dismissal for want of prosecution should be reinstated.

Court orders

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  1. 1.The application is allowed and the suit dismissed on 6th December 2016 is reinstated
  2. 2.The suit be fast tracked for hearing by complying with Order II within the next 60 days failing which it will be dismissed
  3. 3.Parties to fix the suit for hearing upon complying with Order II
  4. 4.There shall be no order as to costs
Jurisdiction invoked
Inherent jurisdiction to reinstate a suit dismissed for want of prosecution (Civil Procedure Rules regime; no specific provision quoted)

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, "Mugo Riakathari v Muthike Miano & 2 others [2018] KEELC 2007 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2007/eng@2018-07-20

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