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ELCPartially Allowed· [2019] KEELC 2141 (KLR)

Mugo Riakathari v Muthike Miano & 2 others [2019] KEELC 2141 (KLR)

Environment and Land Court
11 July 2019
1,459 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court spared a delayed lawsuit from dismissal, but ordered the plaintiff to pay costs and move the case quickly.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) on two competing applications. The plaintiff, Onesmus Muthee Mugo, moved by Notice of Motion dated 20th February 2019 seeking review of orders made on 20th July 2018 by the late S.N. Mukunya J., which had reinstated the suit but directed compliance with Order II of the Civil Procedure Rules within 60 days failing which the suit would stand dismissed. The plaintiff attributed the delay to the demise of the trial judge in August 2018, the pendency of ELC matters at the station, and a full court diary, and sought extension of time, deeming of his witness list and exhibits filed on 13th February 2019, and a hearing date. The defendants opposed, seeking dismissal of the suit for non-compliance. The court found the plaintiff's explanation 'too little too late', an afterthought given after expiry of the 60 days, and held that the judge's demise did not relieve the plaintiff of his obligation to comply. Nonetheless, guided by Articles 159(2)(b), 48 and 50(1) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, and Section 50 Rule 5 CPR, and applying Agip (K) Ltd v Highlands Tyres Ltd and Kakuzi Limited v Samuel Mungai, the court held that the interest of justice required the suit to proceed to full hearing absent substantial prejudice not remediable by costs. The application dated 20th February 2019 was allowed: the 20th July 2018 compliance order was reviewed and set aside, the late-filed documents were deemed duly filed, the plaintiff was ordered to pay costs of Ksh. 10,000/= within seven days, and to prosecute the suit within 30 days, failing which the suit would stand dismissed.

Key legal issues

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01

Whether a plaintiff's failure to comply with a 60-day compliance direction, occasioned by the demise of the trial judge and a full court diary, warrants dismissal of the suit or extension of time

Holding

The order was reviewed and time extended despite the inexcusable delay, because the interest of justice required the matter to proceed to full hearing and no substantial prejudice was demonstrated

Reasoning

The court held that the explanations were an afterthought, since the plaintiff should have sought extension before expiry of the 60 days, and the judge's demise did not relieve him of his obligation. However, the court invoked Article 159(2)(b) and Sections 1A, 1B and 3A of the Civil Procedure Act, alongside Articles 48 and 50(1) of the Constitution, to prioritise substantive justice and a hearing on the merits, finding no substantial prejudice to the defendants that costs could not remedy.

p. 3
02

Whether the court had power to enlarge time even after expiry of the fixed period

Holding

Yes, under Section 50 Rule 5 CPR the court may enlarge time even where the application is made after expiry of the time allowed

Reasoning

The court quoted Order/Section 50 Rule 5 CPR, which empowers the court to enlarge limited time upon such terms as the justice of the case requires, expressly including applications made after expiry. This provision, read with Article 159(2)(d) and the overriding objective, supported the exercise of discretion in favour of the plaintiff, subject to terms on costs.

p. 3

Legal principles established

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  • Where a limited time is fixed for doing an act under the Civil Procedure Rules or by court order, the court retains power to enlarge that time even where the application is made after expiry of the time
  • The overriding interest of every dispute is to allow parties to have their day in court unless substantial prejudice incapable of remedy by costs has been caused to the opposite party

Court orders

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  1. 1.The order of 20th July 2018 requiring the parties to comply with Order II of the Civil Procedure Rules within 60 days is reviewed and/or set aside
  2. 2.The plaintiff's list of documents and witness statements filed on 13th February 2019 are deemed as duly and properly filed and served
  3. 3.The Plaintiff/Applicant to pay the costs of the application assessed at Ksh. 10,000/= within seven (7) days
  4. 4.The plaintiff to take steps to prosecute this suit within 30 days
  5. 5.Failure to comply with paragraphs 3 and 4, this suit shall stand dismissed

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 159(2)(b)
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 50(1)
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 45 Rule 1(a)
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 1A, 3A
  • Civil Procedure RulesSection 50 Rule 5 (as quoted)
  • Civil Procedure RulesOrder II

Cases cited (2)

  • Agip (K) Ltd Vs Highlands Tyres Ltd
    (2001) K.L.R 630
  • Kakuzi Limited Vs Samuel Mungai & 2 others
    ELC No. 302 of 2017 (2018) eKLR
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya; Sections 1A and 1B of the Civil Procedure Act; Order 45 Rule 1(a) and Order 50 Rule 6 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, "Mugo Riakathari v Muthike Miano & 2 others [2019] KEELC 2141 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2141/eng@2019-07-11

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