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ELCDismissed· [2018] KEELC 2437 (KLR)

Republic (Through Pastor Seth Okuyu & Rev. Simon Ochieng) v Khwisero Land Disputes Tribunal & 5 others [2018] KEELC 2437 (KLR)

High Court of Kenya
11 July 2018
NMN. A. Matheka
1,093 words in judgment
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The bottom line

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The High Court refused to revive a land dispute case dismissed in 2015, ruling that a nearly three-year delay showed the applicant was too careless with his own case.

What this practically means

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Executive summary

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This was a ruling of the High Court at Kakamega (Matheka J) on a notice of motion dated 20th March 2018 brought by Rev. Simon Ochieng, the ex parte applicant, under Orders 17 rule 2(2), 12 rule 7 and 45 rule 1 of the Civil Procedure Rules 2010 and sections 1A and 3A of the Civil Procedure Act. The applicant sought review, variation or setting aside of orders issued on 7th July 2015 dismissing his judicial review matter for want of prosecution, and reinstatement of his substantive notice of motion dated 16th October 2003, which sought certiorari and prohibition quashing the proceedings and verdict of the Khwisero Land Disputes Tribunal over land parcel KISA/MUNDOBELWA/1450. The applicant argued that the Tribunal lacked jurisdiction, the claim was statute-barred and the parties lacked locus standi; that his advocate, Mr. Festus Azangalala, was appointed a judge of the High Court in 2003 and could not continue acting for him; that no party was served with notice of the dismissal date; and that he was condemned unheard. The respondent opposed the application as an abuse of process, citing inordinate, unexplained delay and indolence. The court held that the nearly three-year delay between the dismissal on 7th July 2015 and the filing of the application on 22nd May 2018 was inordinate and inexcusable and that the applicant was indolent. Applying Utalii Transport Company Ltd v NIC Bank and Ivita v Kyumbu, the court dismissed the application with costs. The substantive motion was not reinstated.

Key legal issues

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Whether the inordinate and unexplained delay of almost three years warranted the exercise of the court's discretion to review and set aside the dismissal for want of prosecution

Holding

The court found the delay inexcusable and inordinate and the applicant indolent; the application for review was dismissed.

Reasoning

The court perused the file and noted the matter was dismissed on 7th July 2015 while the application was filed on 22nd May 2018, nearly three years later. Relying on Utalii Transport Company Ltd v NIC Bank and Ivita v Kyumbu, it held that it is the primary duty of plaintiffs to progress their case, and that reinstatement depends on whether the delay is prolonged and inexcusable and whether justice will be done despite the delay. The reasons given were unacceptable, so the discretion was not exercised in the applicant's favour.

p. 2

Legal principles established

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  • It is the primary duty of plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court
  • The test for reinstatement after prolonged delay is whether the delay is prolonged and inexcusable and whether justice will be done despite the delay
  • Justice is owed to both plaintiff and defendant, not only the party seeking reinstatement

Court orders

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  1. 1.The notice of motion dated 20th March 2018 seeking review of the dismissal orders of 7th July 2015 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 3A
  • Civil Procedure Rules, 2010Order 17 rule 2(2)
  • Civil Procedure Rules, 2010Order 12 rule 7
  • Civil Procedure Rules, 2010Order 45 rule 1

Cases cited (2)

  • Utalii Transport Company Ltd & 3 Others v NIC Bank & Another
    (2014) eKLR
  • Ivita v Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act, Cap 21; Orders 17 rule 2(2), 12 rule 7 and 45 rule 1 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, "Republic (Through Pastor Seth Okuyu & Rev. Simon Ochieng) v Khwisero Land Disputes Tribunal & 5 others [2018] KEELC 2437 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2437/eng@2018-07-11

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