Esther Njeri Chege (Suing as the personal representative of the Estate of Julius Chege Kiongo (Deceased) v Jamen Kiyagi Amaingu [2019] KEELC 997 (KLR)
The bottom line
#The Environment and Land Court in Kitale refused to throw out a landowner's delayed case, ruling that a missing court file and a genuine explanation outweigh mere delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules
Dismissal refused; the plaintiff's explanation that the court file went missing was plausibly genuine and she was acting in person
The suit had lain unprosecuted for over a year, shifting the burden to the plaintiff to explain the delay. The court accepted as possibly genuine her explanation that the file went missing after she had prosecuted the suit in person, noting that file misplacement in registries occurs without nefarious cause and that she filed the new suit a month before the application. The Ivita test requires consideration of whether the delay is excusable and whether justice can nonetheless be done.
Whether the plaint should be struck out as frivolous, vexatious, scandalous or an abuse of process
Striking out refused; such a remedy is a last recourse and would offend natural justice if done without a substantive hearing
While the defendant raised apparent inconsistencies in the claim, the death of key witnesses does not warrant striking out an already-filed claim. The overriding objective favours just determination of proceedings, and summarily terminating a long-running land dispute on documents alone would not do justice. The plaintiff submitted to the court's jurisdiction and sought to be heard; natural justice requires parties be heard before determination.
Whether the instant suit and Kitale ELC No. 34 of 2019 should be consolidated
Consolidation ordered because both suits arise from the same cause of action
The plaintiff acknowledged the new suit was filed on the misapprehension that the original file had gone missing, thereby admitting that the same cause of action underlies both suits. Both suits are pending before the Environment and Land Court at Kitale and involve the same or similar questions of fact and law arising out of the same transaction, leaving consolidation as the only proper course.
Legal principles established
#- The test for dismissal for want of prosecution is whether the delay is prolonged and excusable and whether justice can still be done despite the delay
- Striking out a pleading without a substantive hearing is a last resort that risks infringing natural justice
- Where two suits are founded on the same cause of action, the court has no recourse but to consolidate them
Court orders
#- 1.The defendant's application dated 14/5/2019 seeking striking out/dismissal of the suit is dismissed with no orders as to costs
- 2.The plaintiff's application dated 11/6/2019 is allowed in terms of prayer No. (1) thereof - consolidation of this suit with Kitale ELC No. 34 of 2019
- 3.The plaintiff shall bear the costs of the application dated 11/6/2019
- Jurisdiction invoked
- Environment and Land Court Act No. 19 of 2011, Section 3; Civil Procedure Act Cap 21, Section 3A; Civil Procedure Rules 2010 (Order 2 Rule 15, Order 17 Rule 2, Order 51)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Njeri Chege (Suing as the personal representative of the Estate of Julius Chege Kiongo (Deceased) v Jamen Kiyagi Amaingu [2019] KEELC 997 (KLR)", Case Analysis (2019). Kitale ELC Case (suit number not stated in judgment; consolidation with Kitale ELC No. 34 of 2019 ordered). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/997/eng@2019-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.