Vima Associates & Co. Ltd v Colleta N. Oduor [2018] KEELC 3023 (KLR)
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
#Key legal issues
#Whether the dismissal order should be set aside
The application was dismissed; the reasons given for non-attendance and the subsequent delay were unacceptable
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.
Applicable test for reinstatement of a suit dismissed for want of prosecution
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
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.
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.The application dated 19th February 2018 seeking reinstatement of the suit is dismissed
- 2.Costs of the application awarded to the respondent
- 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.