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ELCDismissedELC No. 78 of 2014 (formerly HCCC No. 206 of 2011)· [2019] KEELC 1033 (KLR)

Muta Chokwe Ndisi v James Jungo [2019] KEELC 1033 (KLR)

Environment and Land Court
14 October 2019
1,214 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to revive a land suit dismissed for inaction, ruling that misleading the court forfeits any second chance.

What this practically means

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Executive summary

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This was a Notice of Motion dated 14th December 2017 by the Plaintiff seeking to set aside an order of 12th October 2017 by Justice M.A. Odeny dismissing the suit for want of prosecution, and to reinstate the suit for hearing. The application was brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules. The Plaintiff blamed the failure to prosecute on the disappearance of the court file following a change of case number from HCCC No. 206 of 2011 to ELC No. 78 of 2014, and claimed unawareness of the hearing date. The Defendant opposed, contending that the Plaintiff was served with the notice to show cause over a month before the hearing, took no step in the suit for over two and a half years, and did not follow up even after the notice to show cause date of 26th October 2017 until filing the application. Justice C.K. Yano examined the court record and found that a notice dated 26th September 2017 had been served on and acknowledged by the Plaintiff's advocates on 6th October 2017, showing the matter would be heard on 12th October 2017; both parties were absent despite service, so the dismissal was lawful. The claim that the file disappeared was contradicted by the Applicant's own correspondence correctly bearing the new file number. The court held it cannot exercise discretion in favour of a non-candid party. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the suit was properly dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules

Holding

The dismissal was procedural and lawful; the parties were served with notice to show cause and neither attended, so the court rightly dismissed the suit

Reasoning

Order 17 Rule 2(1) permits dismissal where no step is taken for one year, provided the court gives notice to the parties to show cause. The record shows a notice dated 26th September 2017 was served on the Plaintiff's advocates on 6th October 2017, acknowledging receipt, indicating the hearing on 12th October 2017. Both parties were absent on that date despite service, so the dismissal was in compliance with the law.

p. 2
02

Whether the Applicant explained the delay sufficiently to warrant reinstatement

Holding

No; the claim that the court file disappeared due to a change of case number was contradicted by the record, and the Applicant's averments were misleading

Reasoning

The Applicant alleged the file disappeared when the case number changed from 206 of 2011 to 78 of 2014, but correspondence from the Applicant's own advocates on 11th July 2014 and 26th January 2015 correctly bore the new number. The Applicant also claimed unawareness of the 12th October 2017 hearing despite service on 6th October 2017, and gave no explanation for taking no action after the alleged date of 26th October 2017.

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Legal principles established

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  • Before dismissing a suit for want of prosecution under Order 17 Rule 2(1), the court must give the parties notice to show cause; where such notice is duly served and no cause is shown, the dismissal is proper
  • A court will not exercise its discretion in favour of a party who is not candid with the court

Court orders

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  1. 1.The Application dated 14th December 2017 is dismissed with costs to the Respondents
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 12 Rule 7 and Order 51 Rule 1 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, "Muta Chokwe Ndisi v James Jungo [2019] KEELC 1033 (KLR)", Case Analysis (2019). ELC No. 78 of 2014 (formerly HCCC No. 206 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1033/eng@2019-10-14

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