Francis Waithaka Ngariuko v Margaret Nyawira Kariuki (Environment & Land Case 41 of 2014) [2019] KEELC 29 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a landowner's bid to revive his 2011 suit, ruling a seven-year delay without explanation is inexcusable.
What this practically means
#Executive summary
#Key legal issues
#Service of notice to show cause under Order 17 Rule 2
Personal service is not required; bringing the notice to the party's attention by registered post to the party's stated postal address constitutes adequate notice
The court distinguished service of a notice to show cause from service of a summons to enter appearance under Order 5. Relying on Fran Investments Ltd v G4S Security Services Ltd, it held the notice only needs to be brought to the 'notice' of the party. The court had directed service by registered post to P.O. Box 643 Embu, the same address the Plaintiff consistently used in his affidavits, so notice was adequate.
Discretion to reinstate a suit dismissed for want of prosecution
The discretion was refused because the Plaintiff offered no explanation for the prolonged delay of about 7 years, and his contentions of occupation of the suit property and risk of homelessness did not excuse the failure to prosecute
Applying Ivita v Kyumbu, the court examined the Plaintiff's explanation for the delay. The supporting affidavit gave no explanation beyond lack of personal service and fear of eviction. The record showed the Plaintiff was indolent: hearing dates were taken by the Defendant, and the last hearing of 12th June 2017 was scuttled by the Plaintiff's own adjournment. Without a reasonable explanation, the discretion could not be exercised in his favour.
Legal principles established
#- A notice to show cause under Order 17 Rule 2 of the Civil Procedure Rules need not be personally served; it need only be brought to the notice of the parties concerned
- The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay (Ivita v Kyumbu)
- An indolent litigant should not be allowed to keep a suit pending indefinitely to the injustice of his opponent; where inordinate delay is established without credible excuse, it is presumed inexcusable
Court orders
#- 1.The Plaintiff's notice of motion dated 18th October 2019 seeking reinstatement of the originating summons is dismissed
- 2.Costs of the application awarded to the Defendant
- Jurisdiction invoked
- Sections 3A and 63 of the Civil Procedure Act (Cap. 21) and Orders 51 Rule 1, 21 Rule 12(1) and 22 Rule 22(1) of the Civil Procedure Rules (inherent jurisdiction and incidental powers of the court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Waithaka Ngariuko v Margaret Nyawira Kariuki (Environment & Land Case 41 of 2014) [2019] KEELC 29 (KLR)", Case Analysis (2019). Embu ELC (OS) — Originating Summons dated 20th July 2011 (ruling on Notice of Motion dated 18th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/29/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.