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ELCAllowedMombasa ELC No. 70 of 2009· [2019] KEELC 1724 (KLR)

Kenya Anti-Corruption Commission v Chember Holdings Limited & 2 others [2019] KEELC 1724 (KLR)

Environment and Land Court
19 September 2019
CYC.K. Yano
1,194 words in judgment
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The bottom line

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A Kenyan court reinstated a corruption-related land suit dismissed after counsel missed a hearing, ruling dismissal should not permanently deny a party its day in court.

What this practically means

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Executive summary

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This was a Notice of Motion dated 7th August 2018 by the Plaintiff (Kenya Anti-Corruption Commission) seeking to set aside an order of 17th October 2017 dismissing its suit, Mombasa ELC No. 70 of 2009, for want of prosecution and to reinstate the suit. The suit had been consolidated with Mombasa ELC No. 71 of 2009 on 14th June 2012, with this file designated the lead file, and was part-heard, PW1 having testified on 4th March 2014 but not concluded cross-examination. The Plaintiff explained that its then counsel failed to attend the notice to show cause hearing on 17th October 2017. Both the 1st Defendant (by grounds of opposition dated 20th February 2019) and the 2nd Defendant (by replying affidavit of Ashok Labhshanker Doshi sworn 19th October 2018) opposed, arguing inordinate and unexplained delay of about 10 months and prejudice. The court, C.K. Yano J, applying Order 17 Rule 2 of the Civil Procedure Rules and the principles in Shah –v- Mbogoh (1967) EA 116, held that the discretion to reinstate must be exercised judiciously to avoid injustice from accident, inadvertence or excusable mistake. Noting that the matter was consolidated and part-heard, that the Plaintiff had taken active steps in fixing hearing dates, that none of the parties - including the Defendants - attended on 17th October 2017, and that the Defendants had not demonstrated prejudice, the court allowed the application, set aside the dismissal order of 17th October 2017, reinstated the suit for hearing on merit, and ordered each party to bear own costs. Judgment delivered at Mombasa on 19th September 2019.

Key legal issues

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Whether the suit dismissed for want of prosecution should be reinstated

Holding

The application was allowed; the dismissal order of 17th October 2017 was set aside and the suit reinstated for hearing on merit, with each party bearing own costs.

Reasoning

The court exercised its discretionary power under Order 17 Rule 2 judiciously. It noted the suit was consolidated with ELC No. 71 of 2009 with this file as lead file, was part-heard with PW1 yet to conclude testifying, and that the Plaintiff had taken active steps on 28th January 2016 fixing the matter for hearing. None of the parties, including the Defendants, attended on 17th October 2017, and the Defendants did not demonstrate prejudice. The overriding objective and the benefit of doubt favoured reinstatement.

p. 2

Legal principles established

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  • The discretion to reinstate a suit dismissed for want of prosecution must be exercised judiciously and is intended to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.
  • Courts ought to be slow to shut out a party from presenting its case; where there is a good reason provided, the court generally ought to allow an application to reinstate a suit.

Court orders

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  1. 1.The order made on 17th October 2017 dismissing the suit for want of prosecution is set aside
  2. 2.The suit is reinstated for hearing on merit
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2

Cases cited (1)

  • Shah –v- Mbogoh
    (1967) EA 116
Jurisdiction invoked
Inherent discretion to reinstate a suit dismissed for want of prosecution under Order 17 Rule 2 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, "Kenya Anti-Corruption Commission v Chember Holdings Limited & 2 others [2019] KEELC 1724 (KLR)", Case Analysis (2019). Mombasa ELC No. 70 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1724/eng@2019-09-19

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