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ELCDismissedNairobi High Court Civil Case No. 1727 of 1990 (Machakos)· [2019] KEELC 2190 (KLR)

Laban Masai & another v Joseph Makusa Muthoka & 2 others [2019] KEELC 2190 (KLR)

High Court of Kenya
19 July 2019
OAO.A. Angote
1,054 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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The High Court in Machakos refused to revive a land case dismissed 13 years earlier, ruling that litigation must come to an end.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 8th May 2018 by the Defendant, administrator of the estate of the late Muthoka Itumo, in a suit originally filed in Nairobi High Court Civil Case No. 1727 of 1990 by Mutetema Itumo and Kamene Nzalai against Muthoka Itumo, both parties since deceased. The Defendant sought leave for new advocates to come on record, an injunction restraining dealings with land parcels Machakos/Ulu/450 and 451, setting aside of the order of 1st November 2006 dismissing the suit for want of prosecution, rectification of the register to cancel entries made pursuant to orders of 25th July 1995 (set aside on 17th December 1998), and in the alternative leave to amend the defence to include a counter-claim. He argued that the plaintiffs had irregularly procured transfer of the suit properties, a fact unknown to him when he successfully applied to have the suit dismissed in 2006. The 1st Plaintiff opposed, contending the application lacked capacity and was an abuse of process since no suit existed. The court noted that the suit had been dismissed at the Defendant's own instance in 2006 and that no order reinstating it existed. It held that no plausible reason had been shown to revive a suit dismissed thirteen years earlier, that there is no law allowing a defendant to revive a suit dismissed for want of prosecution, and that litigation must come to an end. Having declined to reinstate the suit, the court held the remaining prayers could not issue because orders can only be granted in respect of an existing suit. The application was dismissed with no order as to costs, and the suit was declared dismissed and to be marked as such in the register.

Key legal issues

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01

Revival of a suit dismissed for want of prosecution

Holding

The dismissal of 1st November 2006 was not set aside; no plausible reason was shown after thirteen years.

Reasoning

The suit was dismissed at the Defendant's own instance in 2006. The Defendant only later discovered that the plaintiffs had executed the orders of 25th July 1995 (set aside on 17th December 1998) and transferred the suit properties. The court held that ignorance of that fact was not a plausible reason to reinstate a long-dismissed suit, invoking the doctrine that litigation should come to an end.

p. 2
02

Subsidiary prayers dependent on existence of a suit

Holding

Injunction, rectification and amendment prayers fell away once reinstatement was refused.

Reasoning

Because the court declined to set aside the dismissal order, no suit existed in which injunctive relief, rectification of the register, or amendment of the defence could be granted. The court held orders may issue only in respect of an existing suit.

p. 2

Legal principles established

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  • There is no law allowing a defendant to revive a suit dismissed for want of prosecution at his own instance.
  • A party dismissed from a suit through its own election should suffer the consequences.
  • Courts grant orders only in respect of existing suits.

Court orders

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  1. 1.The Application dated 8th May 2018 is dismissed with no order as to costs
  2. 2.The suit stands dismissed and should be marked as dismissed in the register
Jurisdiction invoked
Inherent jurisdiction of the High Court over its own dismissed suits (Civil Procedure Act) – not expressly cited in the extract

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, "Laban Masai & another v Joseph Makusa Muthoka & 2 others [2019] KEELC 2190 (KLR)", Case Analysis (2019). Nairobi High Court Civil Case No. 1727 of 1990 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2190/eng@2019-07-19

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