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ELCDismissedNot stated in judgment· [2019] KEELC 2502 (KLR)

John Olumasai Achewa v Beatrice Matsa Mutamba & another [2019] KEELC 2502 (KLR)

Environment and Land Court (High Court of Kenya at Kakamega)
26 June 2019
720 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who waited seven months to revive his dismissed land case lost, because courts punish unexplained delay even when the case itself may be strong.

What this practically means

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Executive summary

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The plaintiff/applicant filed a Notice of Motion dated 9th May 2019 under Order 12 Rule 7 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, seeking to set aside orders of 17th October 2018 dismissing his suit for want of prosecution and to reinstate the suit, with costs in the cause. The suit concerned land parcel L.R. No. Kisa/Wambulishe/551, claimed by the respondent as her owner. The applicant argued that neither he nor his counsel, Mr. Ondindo, were served with the hearing notice, that he only learnt of the dismissal in March 2019 when served with the order dated 29th October 2018, that his failure to prosecute was not intentional, and that he had a meritorious case. He further alleged the respondents were wasting and disposing of the suit property. The respondent maintained she owned the land, that service had been effected on the counsel on record, Onindo Onindo & Associates, who did not dispute it, and that she had already filed an eviction case in Butere Court and a bill of costs. Matheka J found the suit was dismissed on 17th October 2018 and the application was not filed until 10th May 2019, an inordinate delay rendering the application an afterthought. Applying Utalii Transport Company Ltd v NIC Bank and the Ivita v Kyumbu test, the court held the delay prolonged and inexcusable and the applicant indolent. The application was dismissed with costs on 26th June 2019.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated

Holding

The application for reinstatement was dismissed due to the applicant's inordinate, unexplained delay.

Reasoning

The court noted the suit was dismissed on 17th October 2018 but the reinstatement application was not filed until 10th May 2019. Applying the Utalii Transport and Ivita v Kyumbu principles, it held the delay was prolonged, the explanations unconvincing, and the application an afterthought by an indolent plaintiff. Justice requires consideration of both parties' positions, and the respondent had already taken steps on the land, including filing an eviction case in Butere Court.

p. 2
02

Whether the plaintiff and his counsel were served with the hearing notice

Holding

The court implicitly rejected the claim of non-service, finding the delay explanation unconvincing; the respondent asserted service on the counsel on record, Onindo Onindo & Associates, which was not disputed.

Reasoning

The applicant claimed neither he nor his counsel was served with the hearing notice. The respondent countered that counsel on record were served and had not disputed service. The court did not make an express finding on service but disposed of the application on the ground of inordinate delay and want of merit, treating the reasons advanced for the delay as unconvincing.

p. 2

Legal principles established

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  • It is the primary duty of plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court.
  • The test for reinstatement after prolonged delay is whether the delay is prolonged and inexcusable and whether justice will be done despite the delay, justice being for both parties.

Court orders

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  1. 1.The Notice of Motion dated 9th May 2019 seeking reinstatement of the suit is dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(e)

Cases cited (2)

  • Utalii Transport Company Ltd & 3 Others vs NIC Bank & Another
    (2014) eKLR
  • Ivita v Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Order 12 Rule 7 of the Civil Procedure Rules, Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act

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, "John Olumasai Achewa v Beatrice Matsa Mutamba & another [2019] KEELC 2502 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2502/eng@2019-06-26

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