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ELCPartially AllowedNot stated in the extract provided· [2019] KEELC 3382 (KLR)

John Nandwa Angaya & another v Patrick Alukwe [2019] KEELC 3382 (KLR)

High Court of Kenya
9 May 2019
NMN.A. MATHEKA
619 words in judgment
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The bottom line

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The High Court in Kakamega reinstated a lawsuit dismissed over a missed hearing, but made the plaintiff pay the defendant's costs and fix a hearing date within 30 days.

What this practically means

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Executive summary

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By a notice of motion dated 12th March 2019 brought under Order 12 rule 7 and Order 51 rule 1 of the Civil Procedure Rules, the plaintiff sought setting aside of the court's orders of 5th March 2019 dismissing the suit for want of prosecution, reinstatement of the suit, and costs. The applicant explained that a clerk in the plaintiff advocate's office diarized the hearing date as 6th March 2019 instead of 5th March 2019, a genuine mistake, and that counsel learned of the dismissal on 6th March when arriving with witnesses ready to proceed. The respondent opposed, submitting that clerks of both firms fixed the matter at the registry on 5th March 2019 as shown on the court file, and that the suit, begun in 2013, had a history of delay with unconvincing explanations. The court perused the file, noted the application was filed on 13th March 2019 and found no delay in filing. It accepted the reasons for non-attendance as excusable and found no prejudice would befall the defendant given the prompt application. Relying on Utalii Transport Company Ltd & 3 Others v NIC Bank & Another on the plaintiffs' primary duty to progress their case, and Ivita v Kyumbu on the test of whether delay is prolonged and inexcusable and whether justice will be done despite it, the court allowed the application, reinstating the suit on condition that the applicant obtains a hearing date within thirty days, with costs of the application to the respondent.

Key legal issues

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01

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

Holding

The application is merited; the dismissal is set aside and the suit reinstated on conditions

Reasoning

The court found the application was filed promptly on 13th March 2019, one day after the applicant learned of the dismissal, so there was no delay. The reasons for non-attendance - a clerical diarization error recording the hearing date as 6th instead of 5th March 2019 - were found excusable. No prejudice would be occasioned to the defendant given the prompt filing. Reinstatement serves the interest of disposing of the suit on merits, conditional on fixing a hearing date within thirty days.

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 delay is whether the delay is prolonged and inexcusable and whether justice will be done despite the delay

Court orders

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  1. 1.The orders issued on 5th March 2019 dismissing the suit for want of prosecution are set aside and the suit reinstated
  2. 2.The applicant to obtain a hearing date of the main suit within thirty (30) days from the date of the ruling
  3. 3.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 51 rule 1

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 and Order 51 rule 1 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, "John Nandwa Angaya & another v Patrick Alukwe [2019] KEELC 3382 (KLR)", Case Analysis (2019). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3382/eng@2019-05-09

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