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ELCDismissedNot stated in the judgment· [2018] KEELC 4605 (KLR)
Everest Limited v Catherine Wambui Kuria [2018] KEELC 4605 (KLR)
Environment and Land Court (as constituted at Nairobi; judgment signed by K. Bor, Judge)
25 January 2018
478 words in judgment
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Plaintiff filed an application dated 18/7/2017 seeking to set aside the court's order of 17/5/2017 dismissing its suit and to reinstate the suit. In support, the Plaintiff's advocate deponed that after leave to amend the plaint was granted on 3/3/2017, the court file went missing, and that the Plaintiff only learnt of the hearing date when served with the hearing notice. The Defendant opposed, pointing out that the Plaintiff failed to pay court fees for the Amended Plaint as directed on 3/3/2017, that the suit had previously been dismissed and reinstated (on 28/5/2015 and 25/6/2016), and that Justice Nyamweya had on 6/11/2012 directed the Plaintiff to prosecute the suit within 90 days without compliance. The Plaintiff was served with the hearing notice on 3/5/2017 but received it under protest. The court, per K. Bor, Judge, noted that the Plaintiff never filed and served the Amended Plaint despite the direction to pay requisite court fees, that no explanation was given for the over two-month delay in filing the reinstatement application, and that this was a suit filed over ten years earlier. Agreeing with the Defendant that the Plaintiff was not keen on prosecuting the matter, the court declined the orders sought, dismissed the application dated 18/7/2017, and awarded costs to the Defendant. Judgment was dated and delivered at Nairobi on 25 January 2018.
Key legal issues
#01
Whether the dismissal order of 17/5/2017 should be set aside and the suit reinstated
Holding
Application dismissed; reinstatement refused
Reasoning
The court found the Plaintiff lacked diligence: the Amended Plaint was never filed or the court fees paid as directed on 3/3/2017, no explanation was offered for the over 2-month delay in filing the reinstatement application, and the suit - filed over 10 years earlier - had previously been dismissed for want of prosecution and reinstated. The court concluded the Plaintiff was not keen on prosecuting the matter.
p. 2
Legal principles established
#- A litigant seeking reinstatement of a suit dismissed for want of prosecution must demonstrate diligence and a bona fide intention to prosecute the suit; chronic delay and prior dismissions weigh against reinstatement
Court orders
#- 1.The application dated 18/7/2017 is dismissed
- 2.Costs of the application awarded to the Defendant
- Jurisdiction invoked
- Inherent jurisdiction of the court to set aside/reinstate suits dismissed for want of prosecution (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Everest Limited v Catherine Wambui Kuria [2018] KEELC 4605 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4605/eng@2018-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.