Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2018] KEELC 4148 (KLR)

Kasama Kimani v Jane Wangechi Kimani [2018] KEELC 4148 (KLR)

Not expressly named in the judgment (delivered at Thika)
9 March 2018
LGL. Gacheru
1,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court reinstated a land dispute dismissed for delay, ruling that a lawyer's neglect should not punish an innocent client—provided the case moves quickly.

What this practically means

#

Executive summary

#
This ruling determines a Notice of Motion dated 30th November 2015 by the plaintiff, Kasama Kimani, seeking reinstatement of his suit, which concerned the purchase of land, after it was dismissed for want of prosecution. The suit, filed on 9th August 2010 against Jane Wangechi Kimani over a land sale in which the plaintiff said he had paid the whole purchase price, had been dismissed on 25th May 2015 under Order 17 Rule 2(1) of the Civil Procedure Rules when the plaintiff and his advocate failed to attend a Notice to Show Cause. The plaintiff explained that his former advocate neither informed him of the Notice to Show Cause nor attended court, and that he had since filed a notice of change of advocates to act in person. The defendant, though served, entered neither appearance nor response, and the matter proceeded by written submissions. The court held that it has discretion to reinstate a suit dismissed under Order 17 but that the discretion must be exercised judicially. Relying on Patel v E.A. Cargo Handling Services, Films Role International v Cannon Film Sales, Ahmed v Highway Carriers and Shah v Mbogo, the court found the unrefuted explanation that the delay was attributable to the former advocate persuasive, holding that an advocate's mistakes should not be visited upon an innocent litigant. The application was allowed entirely in terms of prayer no. 2, reinstating the suit, with costs in the cause, conditional upon the plaintiff setting the suit down for hearing within 45 days, failing which the reinstatement would lapse and the suit stand dismissed. The ruling was delivered at Thika on 9th March 2018 by L. Gacheru J.

Key legal issues

#
01

Whether the suit dismissed for want of prosecution under Order 17 Rule 2(1) should be reinstated

Holding

The court allowed the application and reinstated the suit, finding the delay was caused by the plaintiff's former advocate and not the plaintiff

Reasoning

The court traced the history: the suit was filed on 9th August 2010, the defendant never entered appearance, and the matter was dismissed on 25th May 2015 after a Notice to Show Cause when the plaintiff and his advocate were absent. The applicant's explanation—that his advocate neither informed him of the Notice to Show Cause nor attended court—was unrefuted, the respondent having filed no response despite service. Guided by the principle that the court should take the course carrying the lower risk of injustice, and that an advocate's mistakes should not be visited on an innocent litigant, the court exercised its discretion in favour of reinstatement, subject to a 45-day timeline to set the suit down for hearing.

p. 3

Legal principles established

#
  • The court has discretion to reinstate a suit dismissed under Order 17, but that discretion must be exercised judicially
  • Mistakes of an advocate should not be visited upon an innocent litigant where the litigant is blameless

Court orders

#
  1. 1.The Notice of Motion dated 30th November 2015 is allowed entirely in terms of prayer no. 2
  2. 2.The plaintiff's case dismissed for want of prosecution is reinstated
  3. 3.Costs are in the cause
  4. 4.The plaintiff is directed to set the suit down for hearing within 45 days from the date of the ruling, failing which the reinstatement orders will automatically lapse and the suit will stand dismissed for want of prosecution

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 51 Rules 1, 10 & 15
  • Civil Procedure Rules, 2010Order 9 Rules 7 & 8
  • Civil Procedure Rules, 2010Order 17 Rule 2(1) & (2)
  • Civil Procedure Rules, 2010Order 17 Rule 2(1) & (4)
  • Civil Procedure ActSections 1, 1A and 3A

Cases cited (6)

  • Chieni Enterprises Limited vs. Attorney General & Another
    Milimani HCCC No 1947 of 1999
  • Commercial Bank of Africa Ltd vs Martin Fares Miyesa
    Milimani HCCC No. 1250 of 2002
  • Patel vs. E. A Cargo Handling Services Ltd
    (1974) E. A page 76
  • Films Role International Ltd vs Cannon Film Sales Ltd
    (1986) All ER 772
  • Ahmed vs Highway Carriers
    (1986) LLR 258 (CAK)
  • Shah vs Mbogo
    1968 EA 693
Jurisdiction invoked
Inherent powers under Sections 1, 1A and 3A of the Civil Procedure Act and Order 51 Rules 1, 10 & 15 and Order 9 Rules 7 & 8 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kasama Kimani v Jane Wangechi Kimani [2018] KEELC 4148 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4148/eng@2018-03-09

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