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ELCDismissedNot stated in judgment· [2019] KEELC 1002 (KLR)

Charles Radiro v Rael Wambugo Ombette [2019] KEELC 1002 (KLR)

Environment and Land Court
8 November 2019
AOA. O. Ombwayo
763 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Charles Radiro, the plaintiff, brought two applications before the Environment and Land Court. The first, dated 16 May 2019, sought reinstatement of his suit and setting aside of an order of dismissal dated 18 December 2017 for want of prosecution. He argued that he was not served with the notice to show cause, though he admitted his advocate had been served. The court held that although it has an unfettered discretion to set aside such dismissals, that discretion must be exercised judiciously, considering the period of delay, the reasons for it, prejudice to the other party and the public importance of the issues. Finding that the plaintiff had not given a sufficient explanation for failing to prosecute the case, nor for the more than four months delay in filing the application, the court found him indolent and held he could not blame his advocate. The first application was dismissed with costs. The second application, dated 22 October 2019, sought an injunction restraining the defendant from selling, transferring or further sub-dividing parcels Kisumu/Nyalunya 3834, 4072 and 4073, alleging fraudulent sub-division of the mother parcel Kisumu/Nyalunya 799 and forgery of the plaintiff's signatures. The defendant's counsel objected that the suit had been dismissed, leaving no suit to preserve. The plaintiff admitted the dismissal. The court agreed that interim orders could not issue where no suit was pending and dismissed the second application with costs. Both applications were therefore dismissed, and the plaintiff's underlying claim remains dismissed for want of prosecution.

Key legal issues

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01

Setting aside dismissal for want of prosecution

Holding

Application dismissed; plaintiff indolent and gave no sufficient explanation for the delay or the four months taken to file the application

Reasoning

The applicant admitted his advocate was served with the notice to show cause and did not explain when he learned of the dismissal or why the application came four months later. The court invoked Article 159's emphasis on expeditious disposal and held the discretion must be exercised judiciously, weighing the period of delay, reasons for delay, prejudice to the other party and public importance of the issues.

p. 1
02

Injunction in respect of suit land

Holding

Refused because there was no pending suit, the suit having been dismissed

Reasoning

The second application sought interim relief in a main suit that no longer existed. Counsel for the defendant correctly noted the suit had been dismissed, and the plaintiff admitted the dismissal and service on his advocate. With no subsisting suit, there was nothing to preserve pending hearing and determination.

p. 2

Legal principles established

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  • The discretion to set aside a dismissal for want of prosecution is unfettered but must be exercised judiciously, considering the period of delay, reasons for delay, prejudice to the other party and public importance

Court orders

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  1. 1.The application dated 16th May 2019 seeking reinstatement of the suit and setting aside of the dismissal order dated 18/12/2017 is dismissed with costs
  2. 2.The application dated 22nd October 2019 seeking injunction is dismissed with costs
Jurisdiction invoked
Inherent discretion to set aside dismissal for want of prosecution; Article 159 of the Constitution of Kenya 2010 invoked

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, "Charles Radiro v Rael Wambugo Ombette [2019] KEELC 1002 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1002/eng@2019-11-08

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