Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment (Machakos suit concerning land parcel Machakos Town Block 1/127)· [2019] KEELC 726 (KLR)

Reuben Kavithi Kyungu (Suing as the Administrator of the Estate of Daniel Kyungu Muasya) v Phillip Kivuva Nzioka [2019] KEELC 726 (KLR)

Environment and Land Court
15 November 2019
OAO.A. Angote
410 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

A Machakos court reinstated a land suit dismissed without notifying the plaintiff personally, holding that dismissal without proper service violates the right to be heard.

What this practically means

#

Executive summary

#
The Plaintiff moved the court by a Notice of Motion dated 2nd July 2019 seeking to set aside the proceedings of 28th September 2018 in which his suit — filed on 22nd October 2010 seeking a declaration that the late Daniel Kyungu Muasya is the owner of land known as Machakos Town Block 1/127 — was dismissed for want of prosecution, and to reinstate the case for hearing on priority basis, with costs in the cause. The application was unopposed by the Defendant. The court found that the Plaintiff's original advocate, the firm of Nduva Kitonga & Co. Advocates, had ceased acting for him, and that the Notice to show cause why the suit should not be dismissed for want of prosecution, dated 25th July 2018, was served only on that former advocate; the court clerk was apparently unaware the firm had ceased acting. Consequently, the Plaintiff was not personally served and had no notice of the dismissal proceedings. The court held that, to that extent, the Plaintiff was condemned unheard, and allowed the application as prayed: the dismissal proceedings of 28th September 2018 were set aside, the suit was reinstated for hearing on its merits, a priority hearing date was to be fixed, and costs of the application were to be in the cause. Judgment delivered at Machakos on 15th November 2019 by O.A. Angote, Judge.

Key legal issues

#
01

Whether dismissal for want of prosecution without personal service of the notice to show cause on the Plaintiff warranted setting aside

Holding

The dismissal was set aside because the Plaintiff was not personally served and was thus condemned unheard; the application was allowed as prayed.

Reasoning

The suit was dismissed for want of prosecution after a notice to show cause dated 25th July 2018 was served on the Plaintiff's former advocate, Nduva Kitonga & Co. Advocates. By then, that firm had already ceased acting for the Plaintiff, and the court clerk was apparently unaware of that fact. Since service did not reach the Plaintiff personally, he had no notice of the dismissal proceedings and was condemned unheard, entitling him to reinstatement of the suit for hearing on its merits.

p. 2

Legal principles established

#
  • A party who is not personally served with a notice to show cause why a suit should not be dismissed for want of prosecution is condemned unheard, and any resulting dismissal should be set aside.

Court orders

#
  1. 1.The proceedings of 28th September 2018 dismissing the suit for want of prosecution are set aside
  2. 2.The Plaintiff's case is reinstated for hearing on its merits
  3. 3.A hearing date to be fixed in court on priority basis (the application allowed 'as prayed')
  4. 4.Costs of the application to be in the cause
Jurisdiction invoked
Inherent powers of the court to set aside its own orders; application under a Notice of Motion dated 2nd July 2019 (specific statutory provision not stated)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Reuben Kavithi Kyungu (Suing as the Administrator of the Estate of Daniel Kyungu Muasya) v Phillip Kivuva Nzioka [2019] KEELC 726 (KLR)", Case Analysis (2019). Not stated in judgment (Machakos suit concerning land parcel Machakos Town Block 1/127). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/726/eng@2019-11-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.