Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2018] KEELC 3023 (KLR)

Vima Associates & Co. Ltd v Colleta N. Oduor [2018] KEELC 3023 (KLR)

Environment and Land Court
15 May 2018
1,094 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kakamega refused to revive a land suit dismissed for inaction, because the plaintiff's two-year delay had no acceptable explanation.

What this practically means

#

Executive summary

#
The plaintiff/applicant moved the court by notice of motion dated 19th February 2018, under Order 12 Rule 7 and Order 19 Rule 3 of the Civil Procedure Rules and Sections 34 and 1A of the Civil Procedure Act, seeking to set aside an exparte order of 24th July 2017 dismissing his suit for want of prosecution, plus costs. He contended that the notice of dismissal was served late, at 10.00 a.m. on the hearing date, when he was in Nairobi, and that his matter before Hon. Justice Chacha Mwita had been awaiting a ruling date after written submissions were filed in May 2015. The respondent opposed, arguing that counsel could have arranged a locally based lawyer to hold his brief, that the application was drawn over two months and filed over three months after the dismissal without explanation, and that the suit had become futile because the suit land, MARAGOLI/BUYONGA/235, was closed on 18th April 2012 and subdivided into two new titles, with the applicant having vacated the premises and never paying rent arrears required by an order of 9th August 2014. The court applied Utalii Transport Company Ltd & 3 Others v NIC Bank & Another and Ivita v Kyumbu, holding that it is the plaintiff's primary duty to progress the case and that the test is whether the delay is prolonged and inexcusable and whether justice can still be done. Finding the applicant had taken no steps for over two years and offered unacceptable explanations, the court dismissed the application with costs to the respondent.

Key legal issues

#
01

Whether the dismissal order should be set aside

Holding

The application was dismissed; the reasons given for non-attendance and the subsequent delay were unacceptable

Reasoning

The court found that although the notice was served late on the day of hearing, counsel had other matters scheduled and could not have attended. Counsel made no effort to have a locally based Kakamega lawyer hold his brief. Further, the applicant took over two months to draw and over three months to file the reinstatement application without explanation, showing lack of diligence in prosecuting the suit.

p. 3
02

Applicable test for reinstatement of a suit dismissed for want of prosecution

Holding

The Utalii Transport and Ivita v Kyumbu tests apply: the plaintiff bears primary responsibility for progressing the case, and reinstatement depends on whether the delay is prolonged and inexcusable and whether justice can still be done

Reasoning

Relying on Utalii Transport Company Ltd & 3 Others v NIC Bank and Ivita v Kyumbu, the court held that reinstatement is a matter of justice dependent on the facts, and that the applicant's inordinate, unexplained delay of over two years in prosecuting the suit and over three months in seeking reinstatement failed that test.

p. 3

Legal principles established

#
  • 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 dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice will be done despite the delay, justice being for both parties

Court orders

#
  1. 1.The application dated 19th February 2018 seeking reinstatement of the suit is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 19 Rule 3
  • Civil Procedure ActSection 34
  • Civil Procedure ActSection 1A

Cases cited (2)

  • Utalii Transport Company Ltd & 3 Others v NIC Bank & Another
    (2014) eKLR
  • Ivita v Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Order 12 Rule 7 and Order 19 Rule 3 of the Civil Procedure Rules and Sections 34 and 1A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Vima Associates & Co. Ltd v Colleta N. Oduor [2018] KEELC 3023 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3023/eng@2018-05-15

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