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ELCPartially Allowed· [2018] KEELC 4079 (KLR)

Ngacara Igoji v John Kimani Mwendwa [2018] KEELC 4079 (KLR)

Environment and Land Court of Kenya
14 March 2018
PNP.M. Njoroge
3,582 words in judgment
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The bottom line

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A Kenyan land court dismissed a claimant's attempt to revive a suit, ruling that four years of unexplained delay is too long.

What this practically means

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Executive summary

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This was a first-instance ruling of the Environment and Land Court at Chuka on a notice of motion dated 2nd January 2018 (variously described in the judgment as dated 22nd January 2018), brought under Order 17 Rule 2(3) and Order 51 Rule 1 of the Civil Procedure Rules, seeking dismissal of the respondent's application dated 10th September 2014 for want of prosecution. That application sought to set aside dismissal orders of 20th August 2010. The applicant argued that over three years had elapsed without the respondent prosecuting the application before a competent ELC court, and that orders made in the interim by Justices Makau, Gikonyo and Mabeya were null and void for want of jurisdiction. The respondent opposed, arguing that the matter had been transferred to the ELC at Meru and then to Chuka, that both parties had filed submissions, and that dismissal would render his family homeless since they had occupied the suit land since 1937. He relied on Mwangi S. Kimenyi v Attorney General & another [2014] eKLR and the Ivita v Kyumbu test. Justice P.M. Njoroge distinguished Mwangi Kimenyi, noting that here the application to set aside was filed over four years after the dismissal, a delay he found veritably inordinate under whatever circumstances, and that the explanation proffered was unsatisfactory. The court held the application dated 10th September 2014 merits dismissal for non-prosecution and that, in any event, filing it four years after dismissal was coming to court too late absent extreme and special circumstances. The applicant's application was allowed with costs to the applicant, the effect being that the suit remains dismissed in accordance with the 20th August 2010 dismissal order.

Key legal issues

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01

Dismissal of the application dated 10th September 2014 for want of prosecution

Holding

The application merits dismissal for non-prosecution; the applicant's submissions were more persuasive than the respondent's explanation.

Reasoning

The court compared the facts with the Mwangi Kimenyi case, distinguishing it because that suit had only been dismissed months before the application. Here the suit had been dismissed on 20th August 2010, over four years before the application was filed. The explanation proffered was unsatisfactory, so the delay was inexcusable and the application qualified for dismissal for want of prosecution.

p. 5
02

Whether the respondent's application dated 10th September 2014 should be heard on its merits notwithstanding the delay

Holding

Even apart from non-prosecution, the application would be dismissed because filing it four years after dismissal was coming to court too late, with no extreme and special circumstances.

Reasoning

The court held that absent extremely extenuating circumstances, such late applications should not be allowed. The reasons in the appellant's pleadings disclosed no extreme or special circumstances. The suit had been dismissed over seven years earlier; Article 159 does not save indolent litigants where the explanation for delay is unsatisfactory and litigation must come to an end.

p. 5

Legal principles established

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  • A delay of four years before applying to reinstate a dismissed suit is inordinate under whatever circumstances, and an applicant who cannot satisfactorily explain it will not persuade a court to reinstate the suit.
  • Litigation must come to an end at some time; reinstatement applications filed years after dismissal should not be allowed absent extreme and special circumstances.

Court orders

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  1. 1.The applicant's/respondent's application dated 22nd January 2018 is allowed
  2. 2.The application dated 10th September 2014 stands dismissed for want of prosecution, with the effect that the suit remains dismissed in accordance with the dismissal order issued on 20th August 2010
  3. 3.Costs awarded to the Respondent/Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(3)
  • Civil Procedure RulesOrder 17 Rule 1
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of Kenya, 2010Article 159(1)(d)
  • Constitution of Kenya, 2010Article 50

Cases cited (2)

  • Mwangi S. Kimenyi v Attorney General & another
    [2014] eKLR; Civil Suit Misc No. 720 of 2009
  • Ivita v Kyumbu
    [1984] KLR
Jurisdiction invoked
Environment and Land Court, Chuka, seized of an application under Order 17 Rule 2(3) and Order 51 Rule 1 of the Civil Procedure Rules

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, "Ngacara Igoji v John Kimani Mwendwa [2018] KEELC 4079 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4079/eng@2018-03-14

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