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ELCAllowed· [2019] KEELC 2590 (KLR)

Joan Nelima Chesoli v Fred Mukhebi Chesoli & 5 others [2019] KEELC 2590 (KLR)

High Court of Kenya (not expressly stated in the judgment; the judge sits at Bungoma and transfers the matter to the subordinate court)
11 July 2019
BOBoaz N. Olao
1,207 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's High Court reinstated a lawsuit dismissed for delay because dismissal notices were sent to a lawyer who had died, not the client.

What this practically means

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Executive summary

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This is a ruling on the plaintiff's Notice of Motion dated 28th January 2019 seeking reinstatement of her suit, which had been dismissed for want of prosecution. The plaintiff deponed that she instructed Wanyama Wanyonyi Advocates to file the suit, but her advocate died before the suit could be listed for hearing; she only learnt on 21st January 2019, after repeated visits to court, that her file had been traced in the archives having been dismissed. She said she was never served with the dismissal notice. The defendants opposed through grounds of opposition and a replying affidavit by the 2nd defendant, Sammy Wanyonyi Chesoli, arguing the application was an afterthought, that the plaintiff was guilty of laches for not moving the Court between 15th November 2016 and 30th January 2019, that cases belong to parties and not advocates, and that Mr Edwins Kweyu Advocate had been appointed by the Law Society of Kenya to wind up the deceased advocate's firm. The Court reviewed the record: on 15th November 2016 the Judge dismissed the suit under Order 17(2) CPR after finding the parties absent but served. Olao J held that the November 2016 dismissal notices were directed at a deceased advocate, that there was no evidence the Kweyu firm received those notices, and that the plaintiff's averments of ignorance of the succession were unrebutted. He found it unjust to blame the plaintiff for the delay, noting she filed the application only one week after tracing her file. Allowing the application, he set aside the dismissal order dated 15th November 2016, directed the parties to comply with pre-trial procedures, and, with the consent of the parties, transferred the suit to the Chief Magistrate's Court, Bungoma, for hearing and final disposal, with mention on 1st August 2019. He declined to penalize the plaintiff with costs, ordering no orders as to costs.

Key legal issues

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01

Reinstatement of a suit dismissed for want of prosecution under Order 17 rule 2 CPR

Holding

The dismissal was set aside because dismissal notices were directed at a deceased advocate and there was no evidence the successor firm had notice of the dismissal notices.

Reasoning

The suit was dismissed on 15th November 2016 after the parties failed to appear. The plaintiff's advocate had died (reportedly in 2013), so the November 2016 dismissal notices were directed at a deceased person. Although the earlier August 2016 notices were also directed to Kweyu Advocate, who was winding up the firm, the November notices were not. The plaintiff's claim that she was unaware the Kweyu firm handled her matter was unrebutted, and she filed the application within a week of tracing her file on 21st January 2019. It would be harsh and unjust to punish her for the dismissal.

p. 2
02

Laches and delay by the plaintiff

Holding

The laches argument failed because the plaintiff was unaware of the dismissal and acted promptly once she learned of it.

Reasoning

The defendants argued the plaintiff was indolent for not moving the Court between November 2016 and January 2019 and that cases belong to parties, not advocates. The Court found that the plaintiff's averment that she only traced her file in the registry on 21st January 2019 was unrebutted, and the application was filed one week later on 28th January 2019. Given her lack of notice of both the dismissal and the succession of her advocate's firm, the delay could not be laid at her door.

p. 2

Legal principles established

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  • It would be unjust to drive a party from the right to litigate where the party is not to blame for the dismissal and was not given notice of it.
  • It is unjust to punish a litigant for a dismissal where she had no notice of the dismissal nor that a new firm of advocates was seized of her matter.

Court orders

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  1. 1.The dismissal order dated 15th November 2016 is set aside.
  2. 2.The parties to comply with the pre-trial procedures and have this suit ready for hearing.
  3. 3.By consent of the parties, the suit is transferred to the Chief Magistrate's Court, Bungoma for hearing and final disposal, to be mentioned there on 1st August 2019 for purposes of fixing a hearing date.
  4. 4.No orders as to costs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 rule 2
Jurisdiction invoked
Original civil jurisdiction; consent-based transfer to the subordinate court (Chief Magistrate's Court, Bungoma)

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, "Joan Nelima Chesoli v Fred Mukhebi Chesoli & 5 others [2019] KEELC 2590 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2590/eng@2019-07-11

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