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ELCDismissed· [2018] KEELC 4585 (KLR)

Cheleste Njiru Gicheche v Ephantus Njue Kiathi & 8 others [2018] KEELC 4585 (KLR)

High Court of Kenya
1 February 2018
2,080 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 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

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Executive summary

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By a plaint filed on 29th May 2009, the Plaintiff, administrator of the estate of David Njue Gicheche M'turi, sought eviction of the Defendants from Title No. Evurori/Nguthi/1628, costs, and any other relief. The Defendants never entered appearance. The Plaintiff did not prosecute the suit for about 4 years, and on 28th May 2013 Justice H.I. Ong'udi dismissed it for want of prosecution under Order 17 of the Civil Procedure Rules after a notice to show cause at which no party attended. On 10th August 2016, more than 3 years later, the Plaintiff filed a notice of motion seeking review of the dismissal order, together with an eviction order and security from the sub-county A.P Commander for Mbeere North during eviction. The 1st Defendant opposed, citing absence of any ground for review and inordinate delay. Y.M. Angima J treated the application as one under Order 45 Rule 1(1) and held that the grounds advanced - registered ownership, inability to take possession, and apprehension of adverse possession - did not bring the case within Order 45. The Plaintiff's explanation, that he was prosecuting succession cause No. 456 of 2008 and obtaining a confirmed grant and title deed, was rejected since prosecuting a succession cause and a civil suit are not mutually exclusive. Applying Ivita v Kyumbu, Fitzpatrick v Batger, Mukisa Biscuit and CMC Holdings v Nzioki, the court found the delay prolonged and inexcusable, the review application not filed without unreasonable delay, and the Plaintiff not a vigilant litigant. The application was dismissed in its entirety with costs to the 1st Defendant.

Key legal issues

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01

Whether the Plaintiff's grounds warranted review of the dismissal order

Holding

The grounds (registered ownership, inability to take possession, fear of adverse possession) do not fall within Order 45

Reasoning

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.

p. 2
02

Whether the application was filed without unreasonable delay

Holding

Filing the review more than 3 years after dismissal, unexplained, was unreasonable delay

Reasoning

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.

p. 3
03

Whether the Plaintiff deserved the exercise of judicial discretion in his favour

Holding

No - the Plaintiff was not a vigilant litigant

Reasoning

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.

p. 3
04

Whether eviction and security orders could issue

Holding

No decree existed in the Plaintiff's favour, so no eviction or security orders could be granted

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Plaintiff's notice of motion dated 10th August 2016 is dismissed in its entirety with costs to the 1st Defendant

Authorities

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Legislation

  • Civil Procedure Actsections 3 and 3A
  • Civil Procedure RulesOrder 17 Rule 2(1)
  • Civil Procedure RulesOrder 45 Rule 1(1)

Cases cited (4)

  • Ivita Vs Kyumbu
    [1984] KLR 441
  • Fitzpatrick Vs Batger & Co Ltd
    [1972] ALL ER 657
  • Mukisa Biscuit Manufacturing Co Ltd Vs West End Distributors Ltd
    [1969] EA 696
  • CMC Holdings Ltd Vs Nzioki
    [2004] 1 KLR 173
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

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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, "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.