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ELCPartially AllowedNot stated in the judgment (Motion dated 20th June, 2018)· [2019] KEELC 1840 (KLR)

Free Pentecostal Felloship in Kenya Registered Trustees v Macedonia Resort Club Limited & another [2019] KEELC 1840 (KLR)

Environment and Land Court
5 September 2019
764 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A land suit dismissed for delay was revived because the owners were legitimately pursuing settlement through Kenya's National Land Commission.

What this practically means

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Executive summary

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The plaintiff moved the court by Motion dated 20th June 2018 seeking to set aside an order of 12th March 2018 dismissing the suit for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules, to reinstate the suit for hearing, and for costs. The plaintiff explained that the notice to show cause was not received by its counsel until 6th June 2018, and that the parties had referred the dispute to the National Land Commission, appearing before it at CITAM Kisumu on 9th and 10th November 2016 and awaiting its determination. The application was opposed through a replying affidavit sworn by the defendants' advocate, and both parties filed written submissions. The court framed three issues: service of the notice, reasonable explanation for the failure to prosecute for over a year, and costs. It found the notice was posted on 6th March 2018 and received by the defendants' counsel on 7th March 2018, but that the plaintiff's claim of non-receipt until 6th June 2018 was undisputed and corroborated by a letter of 7th June 2018 from the plaintiff's advocate. The court held that had it known of the pending National Land Commission proceedings, it would most probably have placed the matter for mention instead of dismissing it. The pursuit of settlement through the Commission was an ADR endeavour recognised under Article 159 of the Constitution, constituting reasonable cause. The court allowed the motion in terms of prayers 1 and 2, setting aside the dismissal, reinstating the suit, and making costs of the application costs in the cause. Judgment was delivered by S. M. Kibunja, Environment & Land Judge, on 5th September 2019.

Key legal issues

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01

Service of the Order 17 Rule 2 notice

Holding

The notice was posted to the plaintiff's counsel but was not received until 6th June 2018; the claim of non-receipt was undisputed, so plaintiff's counsel did not attend the 12th March 2018 hearing for want of notice

Reasoning

The court found the notice was posted on 6th March 2018 and received by the defendant's counsel on 7th March 2018. The plaintiff's assertion that it was received only on 6th June 2018 was corroborated by their advocate's letter of 7th June 2018, whose existence and contents were not disputed. No contrary evidence was tendered, so the court accepted the plaintiff's account.

p. 1
02

Reasonable explanation for failure to prosecute the suit

Holding

The plaintiff showed reasonable cause: the parties had referred the dispute to the National Land Commission, heard on 9th and 10th November 2016, and were awaiting its determination

Reasoning

The court held that had it been informed on 12th March 2018 that the parties had been heard by the National Land Commission and were awaiting determination, it would most probably have placed the matter for mention instead of dismissing it. The pursuit of settlement through the Commission was an ADR endeavour recognised under Article 159 of the Constitution, constituting reasonable cause for the delay.

p. 2
03

Costs

Holding

Costs of the application to be in the cause, as the delay was occasioned by an ADR effort recognised under Article 159

Reasoning

Because the plaintiff's non-prosecution was due to pursuit of settlement before the National Land Commission, an ADR mechanism recognised under Article 159 of the Constitution, the court considered it fair that the costs of the application not be awarded immediately but be in the cause.

p. 2

Legal principles established

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  • Pursuit of alternative dispute resolution before the National Land Commission constitutes reasonable cause for not taking steps to prosecute a suit
  • Where a notice of dismissal is alleged not to have been received and no evidence is tendered to show otherwise, the claim of non-receipt stands undisputed

Court orders

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  1. 1.The court order of 12th March, 2018 dismissing the suit for want of prosecution is set aside
  2. 2.The suit is reinstated for hearing (application allowed in terms of prayers 1 and 2 of the Motion dated 20th June, 2018)
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
  • Constitution of KenyaArticle 159
Jurisdiction invoked
Inherent jurisdiction to set aside dismissal 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, "Free Pentecostal Felloship in Kenya Registered Trustees v Macedonia Resort Club Limited & another [2019] KEELC 1840 (KLR)", Case Analysis (2019). Not stated in the judgment (Motion dated 20th June, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1840/eng@2019-09-05

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