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ELCDismissedNot stated in the judgment· [2019] KEELC 854 (KLR)

George Ouma Odhiambo v Philip Juma Okello; Michael Owiti Omogo (Interested Party) [2019] KEELC 854 (KLR)

Environment and Land Court of Kenya
2 October 2019
1,538 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land suit dormant for nearly six years stayed dismissed because the owner offered no good reason for the long delay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (G.M.A. Ongondo, J) determined a Notice of Motion dated 7th January 2019 by the plaintiff seeking to set aside an order dismissing his suit for want of prosecution on 22nd November 2018, and to reinstate the suit for hearing on a priority basis. The application, brought under sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Article 159(d) of the Constitution and Order 12 Rule 7 of the Civil Procedure Rules, was supported by an affidavit sworn by the applicant's counsel, Mr. T. Kwanga Mboya, who attributed the non-attendance to a secretary, Irene Muli, who failed to diarise the notice to show cause. The defendant, Philip Juma Okello, opposed the application, contending it was caught by laches, that the applicant's counsel's affidavit lacked corroboration by the client, and that litigation must come to an end. The court framed the issue as whether the application was merited. It held that although mistake of counsel should not be visited on a client and the right to be heard is fundamental, the applicant had been duly served with the notice to show cause before the dismissal, the suit filed on 26th October 2012 had remained unheard for close to six years, and no sufficient reasons were advanced. Endorsing the principle that land cases deserve priority, the court nonetheless found the delay inordinate and the application without merit, dismissing it with costs to the respondent on 2nd October 2019.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution should be set aside

Holding

The application was dismissed; the applicant was duly served with the notice to show cause, delayed inordinately in prosecuting a suit filed in 2012, and gave no sufficient reasons for reinstatement

Reasoning

The court noted that mistake of counsel should not be visited on a client and that the right to be heard is fundamental. However, the notice to show cause was served on the applicant's counsel before the adverse decision, so the applicant was heard in the procedural sense. The suit had lain unheard for close to six years since filing on 26th October 2012, and the application was not made timeously. Weighing the overriding objective against the principle that litigation must end, the court found no merit in the application and declined reinstatement.

p. 3
02

Priority of land disputes and delay in the justice system

Holding

The court endorsed the observation that land cases must be heard as quickly as possible, yet found the delay here fatal

Reasoning

Citing Mwangi v Mwangi, the judge fully endorsed the proposition that land is of extreme importance to ordinary people and land cases deserve priority even over accident injury claims. Article 159(2)(b) requires that justice not be delayed, and section 3 of the Environment and Land Court Act embodies the overriding objective of dispensing justice without delay. This served to underscore, rather than excuse, the applicant's inordinate delay of close to six years.

p. 3

Legal principles established

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  • Under Order 17 rule 2, a suit in which no step has been taken for one year may be dismissed after notice to show cause
  • Where a suit has been dismissed, the court may on application set aside or vary the dismissal upon such terms as may be just (Order 12 rule 7)
  • A party served with notice must give sufficient reasons for failure to prosecute; mere assertion of counsel's mistake does not avail where there has been inordinate delay
  • Litigation has to come to an end

Court orders

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  1. 1.The application dated 7th January 2019 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(e)
  • Constitution of Kenya, 2010Article 159(d); Article 159(2)(b)
  • Civil Procedure Rules, 2010Order 12 Rule 7; Order 17 rule 2
  • Environment and Land Court ActSection 3

Cases cited (6)

  • Chairman, Kenya National Union of Teachers and another v Henry Inyangla and 2 others
    (2018) eKLR
  • Shabir Din v Ram Parkash Anand
    (1955) EACA Volume 22 page 48
  • Onyango Oloo v Attorney General
    (1986-1989) EA 456
  • James Kanyiita Nderitu and another v Mariosphilotas Ghikas and another
    (2016) eKLR
  • Mwangi and another v Mwangi
    (1986) KLR 328
  • Eunice Wangui Muturi v Francis Kamande and another
    (2017) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Article 159(d) of the Constitution of Kenya 2010 and Order 12 Rule 7 of the Civil Procedure Rules

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, "George Ouma Odhiambo v Philip Juma Okello; Michael Owiti Omogo (Interested Party) [2019] KEELC 854 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/854/eng@2019-10-02

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