Kenya Aids Ngo Consortium & another v Andrew Ouko & another [2019] KEELC 167 (KLR)
The bottom line
#A Kenyan court reinstated a land suit dismissed without notice, confirming that dismissal without service of a Notice to Show Cause is irregular.
What this practically means
#Executive summary
#Key legal issues
#Regularity of the dismissal for want of prosecution
The dismissal was exercised erroneously and irregularly because the Notice to Show Cause was never served on the plaintiffs' advocates; the plaintiffs were entitled as of right to have it set aside.
Order 17 rule 2(1) permits dismissal only after parties are served with notice to show cause and fail to appear or show cause. Here the notice intended for the 1st plaintiff's advocates was returned marked 'The adv. has moved' and Momanyi & Associates were not served at all. Had the court been alerted to the non-service it would not have dismissed the suit; accordingly the order of 28th May 2015 fell to be set aside.
Inordinate delay by the plaintiffs
The plaintiffs were guilty of inordinate delay, and the pendency of their interlocutory appeal was not a sufficient reason for failing to prosecute the suit, but the delay did not defeat reinstatement.
The court agreed with the 1st defendant that the plaintiffs were guilty of inordinate delay and that filing an appeal against Onyancha J's interlocutory decision did not stay the suit. However, applying the broad equity approach, the blunder of the plaintiffs' advocates did not warrant the penalty of losing the right to a hearing, since any prejudice to the 1st defendant was curable by costs.
Prejudice to the 1st defendant
The 1st defendant would not suffer prejudice that could not be compensated by costs.
The court noted the nature of the dispute and was inclined to give the 1st plaintiff a chance to prosecute its suit even if a Notice to Show Cause had been served. The alleged existence of another suit between the parties (HCCC No. 558 of 2004) was raised by the defendant, but the court was not persuaded that reinstatement would cause irreparable prejudice.
Legal principles established
#- The power to dismiss a suit under Order 17 rule 2(1) is exercisable only after service of a Notice to Show Cause on the parties; dismissal without such service is irregular and the order is liable to be set aside as of right.
- Filing an interlocutory appeal does not operate as a stay of proceedings in the lower suit; a party wishing to hold a suit in abeyance pending appeal must seek an order of stay of proceedings.
- Mistakes by counsel should not ordinarily result in a party losing the right to be heard on the merits; errors or defaults can be cured by payment of costs absent fraud or intention to overreach.
Court orders
#- 1.The Notice of Motion dated 18th July 2016 is allowed in terms of prayers 2 and 3 thereof
- 2.The order dismissing the suit made on 28th May 2015 is set aside and the suit is reinstated for hearing inter-partes
- 3.The 1st defendant shall have the costs of the application
- Jurisdiction invoked
- Inherent and discretionary power of the court to set aside an ex parte order of dismissal for want of prosecution under Order 17 rule 2(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aids Ngo Consortium & another v Andrew Ouko & another [2019] KEELC 167 (KLR)", Case Analysis (2019). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/167/eng@2019-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.