Cheleste Njiru Gicheche v Ephantus Njue Kiathi & 8 others [2018] KEELC 4585 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's attempt to revive a neglected lawsuit, confirming that unexplained delay and ownership papers alone cannot undo a dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's grounds warranted review of the dismissal order
The grounds (registered ownership, inability to take possession, fear of adverse possession) do not fall within Order 45
The court considered each ground in the notice of motion and found none brought the case within the ambit of Order 45. Registration as owner does not warrant review of a dismissal order; inability to possess and fear of adverse possession are likewise not recognised grounds. Review is confined to new and important matter, error apparent on the face of the record, or other sufficient reason.
Whether the application was filed without unreasonable delay
Filing the review more than 3 years after dismissal, unexplained, was unreasonable delay
The suit was dismissed in May 2013 after 4 years of inactivity; the Plaintiff did not move until August 2016. His explanation - that he was pursuing the succession cause and title - was rejected because prosecuting a succession cause and a civil suit are not mutually exclusive. He failed to check the progress of his suit regularly and gave no acceptable explanation for the delay.
Whether the Plaintiff deserved the exercise of judicial discretion in his favour
No - the Plaintiff was not a vigilant litigant
The suit had been filed about 9 years earlier, was unprosecuted for 4 years and dismissed, then left unattended for another 3 years before the review application. Citing Ivita v Kyumbu and CMC Holdings Ltd v Nzioki, the court held the discretion to reinstate must be exercised judiciously upon reasons, not on whim or sympathy, and the Plaintiff did not merit it.
Whether eviction and security orders could issue
No decree existed in the Plaintiff's favour, so no eviction or security orders could be granted
Eviction orders presuppose a judgment or decree in favour of the applicant. Since the suit had been dismissed for want of prosecution and the dismissal was not set aside, the Plaintiff had no decree, and the court could not order eviction of the Defendants or security from the sub-county A.P Commander.
Legal principles established
#- An application for review must be brought without unreasonable delay and must establish new and important matter, an error apparent on the face of the record, or other sufficient reason
- The discretion to reinstate a suit dismissed for want of prosecution must be exercised judicially and not on sympathy
Court orders
#- 1.The Plaintiff's notice of motion dated 10th August 2016 is dismissed in its entirety with costs to the 1st Defendant
- Jurisdiction invoked
- Civil Procedure Act (sections 3 and 3A) and Order 45 of the Civil Procedure Rules, application for review of the court's own dismissal order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheleste Njiru Gicheche v Ephantus Njue Kiathi & 8 others [2018] KEELC 4585 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4585/eng@2018-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.