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ELCAllowedNot stated in judgment (Originating Summons filed 7th December 2010)· [2018] KEELC 4183 (KLR)

Robert Kiprop Chelagat v Chebii Chelimo [2018] KEELC 4183 (KLR)

Environment and Land Court
31 January 2018
MOM. Odeny
956 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated a land suit dismissed for being dormant for four years, showing courts will forgive delay if it is explained and justice demands it.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Eldoret (M. Odeny, J) determined the plaintiff's notice of motion dated 13th June 2017 seeking to set aside the order allowing the defendant's application dated 28th June 2016, by which the plaintiff's originating summons suit over land reference Sacho/Kabasis/400 was dismissed for want of prosecution. The plaintiff, who had obtained temporary injunction orders in 2011, argued under Order 12 Rule 7 that the court may set aside a judgment or order on just terms, including payment of thrown away costs, and cited Order 17 Rule 2(2) and the Kirinyaga General Machinery case, explaining that directions under Order 11 had not been taken despite his advocate's efforts. The defendant opposed, noting the plaintiff had taken no steps for about four years and no reason was given for the delay. The court framed seven issues covering inordinate and inexcusable delay, abuse of process, prejudice, explanation, and the interests of justice. Taking judicial notice of the transfer of the matter from the High Court in 2012 and the fact that only one judge handled land matters at the station, and noting that the reinstatement application was filed without delay, the court found the explanation sufficient and the mistake excusable. It exercised its discretion in favour of reinstatement, ordering the plaintiff to pay thrown away costs of Kshs 10,000 to the defendant, and directing compliance with Order 11 within 30 days and fixing of the main suit for hearing, failing which the suit would stand dismissed.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution should be set aside

Holding

The court found the plaintiff's explanation for non-attendance excusable and the dismissal prejudicial, and reinstated the suit on terms as to thrown away costs and compliance with Order 11.

Reasoning

The court set out seven factors guiding applications to reinstate suits dismissed for want of prosecution, including inordinate delay, whether the delay is intentional or an abuse of process, prejudice, and the interests of justice. Taking judicial notice that the matter was transferred from the High Court to the Environment and Land Court in 2012 when only one judge handled land matters at the station, and noting the applicant filed the current application without delay, the court found the reasons for non-attendance sufficient, the mistake excusable, and reinstatement consistent with doing justice without undue technicalities.

p. 2

Legal principles established

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  • The court has discretion under Order 12 Rule 7 to set aside or vary a judgment or order upon such terms as may be just, including payment of thrown away costs.
  • Dismissal of a suit for want of prosecution may be set aside where a sufficient explanation for the delay is shown and dismissal would occasion prejudice to the plaintiff.

Court orders

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  1. 1.The order allowing the respondent's application dated 28th June 2016 (dismissal for want of prosecution) is set aside and the suit is reinstated
  2. 2.The plaintiff to pay thrown away costs of Kshs 10,000 to the defendant
  3. 3.Parties to comply with Order 11 within 30 days and fix the main suit for hearing, failing which the suit stands dismissed

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 12 Rule 7
  • Civil Procedure Rules, 2010Order 17 Rule 2(2)
  • Civil Procedure Rules, 2010Order 17 Rule 2
  • Civil Procedure Rules, 2010Order 11

Cases cited (1)

  • Kirinyaga General Machinery -vs- Hezekiel Muriithi Ireri
    Nyeri High Court Civil Appeal No. 98/2003 [2007] eKLR
Jurisdiction invoked
Order 12 Rule 7 and Order 17 Rule 2 of the Civil Procedure Rules, 2010 (discretion to set aside dismissal orders)

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, "Robert Kiprop Chelagat v Chebii Chelimo [2018] KEELC 4183 (KLR)", Case Analysis (2018). Not stated in judgment (Originating Summons filed 7th December 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4183/eng@2018-01-31

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