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ELCAllowedNot stated in judgment (application dated 5th December, 2017)· [2018] KEELC 2618 (KLR)

Zakayo Kamau Theuri v Moses Kinini Theuri [2018] KEELC 2618 (KLR)

Environment and Land Court
17 May 2018
LWL N Waithaka
928 words in judgment
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The bottom line

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A Kenyan court reinstated a land suit dismissed for inaction because the owner moved quickly and showed genuine commitment to pursuing the case.

What this practically means

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Executive summary

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The plaintiff applied by motion dated 5th December 2017 to set aside orders made on 22nd November 2017 dismissing his suit, filed in 2001, for want of prosecution and non-attendance under Order 17 Rule 2(1) of the Civil Procedure Rules, 2010, no action having been taken since 2014. He contended that his advocate's affidavit explaining the delay was on record and that though counsel was absent, he personally attended court. The defendant opposed, alleging the plaintiff had lost interest, that counsel left court before the matter was called, and that reinstatement would cause him further suffering. The court framed a single issue: whether the applicant had satisfied the principles for reinstatement. Relying on Simion Waitim Kimani & Three others v Equity Building Society (2010) eKLR, the court applied the requirements of good faith and absence of unreasonable delay. It found the application was filed barely two weeks after dismissal, that the plaintiff had filed an affidavit on 13th November 2017 explaining the delay, and that he personally attended court on the dismissal date, demonstrating continued interest in prosecuting the suit. Allowing the application as prayed, the court reinstated the suit and directed the plaintiff to set the matter down for pretrial within 60 days. The judgment was delivered at Nyeri on 17th May 2018 by L N Waithaka J. No costs order was recorded.

Key legal issues

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01

Whether the applicant satisfied the principles for reinstatement of a suit dismissed for want of prosecution

Holding

Yes; the application was filed within two weeks of dismissal and the applicant showed interest and good faith through an affidavit explaining the delay.

Reasoning

The suit was dismissed on the court's own motion under Order 17 Rule 2(1) for inaction since 2014. Applying the principles in Simion Waitim Kimani v Equity Building Society, the court noted the application was filed barely two weeks after dismissal and that the plaintiff had filed an affidavit on 13th November 2017 explaining the delay and personally attended court on the dismissal date, demonstrating good faith and continued interest in prosecuting the suit.

p. 2

Legal principles established

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  • A party seeking reinstatement of a suit dismissed for non-attendance must demonstrate good faith and bring the application without unreasonable delay.

Court orders

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  1. 1.The application dated 5th December, 2017 allowed as prayed
  2. 2.The orders of 22nd November, 2017 dismissing the suit for want of prosecution set aside and the suit reinstated
  3. 3.The plaintiff to set the matter down for pretrial within 60 days from the date of the order
Jurisdiction invoked
Inherent jurisdiction to reinstate a suit dismissed under Order 17 Rule 2(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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Zakayo Kamau Theuri v Moses Kinini Theuri [2018] KEELC 2618 (KLR)", Case Analysis (2018). Not stated in judgment (application dated 5th December, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2618/eng@2018-05-17

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