Ndibithi Farmers Co Limited v Mwana Mwireri Rironi & another [2018] KEELC 2763 (KLR)
The bottom line
#The court refused to reinstate a land suit dismissed for delay, because the plaintiff could not prove it never received the dismissal notice.
What this practically means
#Executive summary
#Key legal issues
#Service of the Notice to Show Cause
Service was effected on the plaintiff's advocates at their address of service
The Notice was addressed to M/s Kaka Kamau & Co. Advocates on record for the plaintiff. Although the plaintiff's director deposed that the advocates were not served, the advocates themselves swore no affidavit denying service. The court therefore found ample evidence of service at the provided address of service and held service effected.
Whether discretion to set aside should be exercised in the plaintiff's favour
No; the plaintiff's inaction and prior conduct of abusing court process disentitled it to the discretion
The court applied the Mbogoh v Shah principles as restated in James Kanyiita Nderitu. It weighed the plaintiff's failure to comply with the order of 18th September 2014 requiring the suit to be set down within 12 months, the absence of any extra effort to prepare the suit, and the earlier finding by Emukule J that the plaintiff intended to abuse the court process. Exercising discretion for the plaintiff would be a gross failure of justice between the parties.
Legal principles established
#- In the absence of an affidavit sworn by the advocates specifically denying service, service at the address of service will be presumed effected
- Discretion to set aside dismissal should not be exercised to assist a party abusing the court's process
Court orders
#- 1.The Notice of Motion dated 11th March 2016 is dismissed
- 2.Costs of the application to the defendant
- Jurisdiction invoked
- Inherent discretion of the court under Order 17 Rule 2 of the Civil Procedure Rules to set aside dismissal for want of prosecution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndibithi Farmers Co Limited v Mwana Mwireri Rironi & another [2018] KEELC 2763 (KLR)", Case Analysis (2018). Notice of Motion dated 11th March 2016 (elc suit, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2763/eng@2018-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.