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ELCDismissedEmbu ELC (OS) — Originating Summons dated 20th July 2011 (ruling on Notice of Motion dated 18th October 2019)· [2019] KEELC 29 (KLR)

Francis Waithaka Ngariuko v Margaret Nyawira Kariuki (Environment & Land Case 41 of 2014) [2019] KEELC 29 (KLR)

Environment and Land Court
28 November 2019
1,767 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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By a notice of motion dated 18th October 2019 under Order 51 Rule 1, Order 21 Rule 12(1), Order 22 Rule 22(1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the Plaintiff sought reinstatement of his originating summons dated 20th July 2011, which had been dismissed for want of prosecution on 15th November 2018. He argued he was never served with the notice to show cause, faced eviction from the suit property, had no alternative land, and that the Defendant would suffer no prejudice. The Defendant, the registered proprietor of the suit property, opposed the application, noting the Plaintiff's indolence over more than 7 years, his awareness of the notice to show cause (a copy of which he annexed), and that she had taken hearing dates which the Plaintiff scuttled. The court framed the sole question as whether the Plaintiff had made out a case for reinstatement. Relying on Fran Investments Ltd v G4S Security Services Ltd, Angima J held that a notice to show cause under Order 17 Rule 2 need not be personally served and that service by registered post to the Plaintiff's usual postal address was adequate. Applying Ivita v Kyumbu, the court found the roughly 7-year delay prolonged and inexcusable, the Plaintiff having offered no explanation beyond his occupation of the suit property and fear of homelessness, which did not excuse his failure to prosecute. The court found no merit in the application and dismissed it with costs to the Defendant on 28th November 2019.

Key legal issues

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01

Service of notice to show cause under Order 17 Rule 2

Holding

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

Reasoning

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.

p. 2
02

Discretion to reinstate a suit dismissed for want of prosecution

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Plaintiff's notice of motion dated 18th October 2019 seeking reinstatement of the originating summons is dismissed
  2. 2.Costs of the application awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 21 Rule 12(1)
  • Civil Procedure RulesOrder 22 Rule 22(1)
  • Civil Procedure RulesOrder 17 Rule 2
  • Civil Procedure RulesOrder 5
  • Civil Procedure Act (Cap. 21)Section 3A

Cases cited (5)

  • Fran Investments Ltd Vs G4S Security Services Ltd
    [2015] eKLR
  • Ivita V Kyumbu
    [1984] KLR 441
  • Fitzpatrick V Batger & Co. Ltd
    [1972] ALL ER 657
  • Mukisa Biscuit Manufacturing Co Ltd Vs West End Distributors Ltd
    [1969] EA 696
  • Allen V Sir Alfred McAlpine & Sons Ltd
    [1968] 1 All E.R. 453
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

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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, "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.