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ELCPartially AllowedNot stated in judgment· [2019] KEELC 4175 (KLR)

Hussein Abdalla Hille & another v Governor County of Marsabit & another;Al-Ul Suna Mosque & Madrassa (Interested Party) [2019] KEELC 4175 (KLR)

Environment and Land Court
27 March 2019
LMLUCY. N. MBUGUA
920 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a dismissed land suit, but only on strict conditions including no adjournments and a four-month deadline to set a hearing date.

What this practically means

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Executive summary

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By a Notice of Motion dated 5th December 2018 brought under Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 3A and 63(e) of the Civil Procedure Act and Articles 48, 159(2)(d) and 165(5)(b) of the Constitution, the applicants (plaintiffs) sought leave for the firm of M/S Guantai & Associates to come on record in place of M/S Charles Kariuki & Kiome Associates, setting aside of the dismissal order dated 19th February 2018, and reinstatement of the suit dismissed for want of prosecution. The application was supported by the affidavit of Hussein Abdalla Hile and was unopposed despite service on the respondents. The court framed a single issue: whether the suit should be reinstated. Relying on Section 3A of the Civil Procedure Act and authorities including Simion Waitim Kimani v Equity Building Society, Belinda Murai v Amoi Wainaina and Alice Mumbi Nganga v Danson Chege Nganga, the court held that a party seeking reinstatement must demonstrate good faith and act without unreasonable delay. It observed that the matter had lain in limbo from 2014 until the court cleared backlogs in 2018, and that the then advocate was duly served with the notice to show cause. Nevertheless, the court exercised its discretion in favour of the applicants, allowing the application and reinstating the suit, subject to a rider that the suit, once set down for hearing, shall not be adjourned at the applicants' instance and that a hearing date must be taken within four months. The applicants were ordered to pay the costs of the application. Delivered at Meru on 27th March 2019 by Hon. Lucy N. Mbugua, ELC Judge.

Key legal issues

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01

Whether the suit dismissed for want of prosecution should be reinstated

Holding

The application was allowed; the dismissal order was set aside and the suit reinstated, subject to conditions

Reasoning

The court noted the matter lay in limbo from 2014 until the court cleared backlogs in 2018, and the then advocate was duly served with the notice to show cause. Notwithstanding the delay, the court exercised its judicial discretion in favour of the applicants, guided by the inherent powers under Section 3A of the Civil Procedure Act and the interest of substantive justice, but imposed a rider that the suit shall not be adjourned at the applicants' instance and a hearing date must be taken within four months.

p. 2

Legal principles established

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  • A party seeking reinstatement of a suit dismissed for want of prosecution must demonstrate good faith and bring the application without unreasonable delay
  • The court's discretion under Section 3A of the Civil Procedure Act must be exercised judiciously to ensure the ends of justice are met

Court orders

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  1. 1.The dismissal order dated 19th February 2018 set aside and the suit reinstated
  2. 2.The suit once set down for hearing shall not be adjourned at the instance of the Applicant/Plaintiff
  3. 3.The hearing date must be taken within 4 months from the date of delivery of the ruling
  4. 4.Applicant to pay costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaArticles 48, 159(2)(d), 165(5)(b)

Cases cited (3)

  • Simion Waitim Kimani & Three others vs Equity Building Society
    (2010) eKLR
  • Belinda Murai & Others Vs Amoi Wainaina
    (1978) KLR 2782
  • Alice Mumbi Nganga vs Danson Chege Nganga & Another
    (2006) eKLR
Jurisdiction invoked
Order 10 Rule 11, Order 51 Rule 1 of the Civil Procedure Rules, Sections 3A and 63(e) of the Civil Procedure Act, Articles 48, 159(2)(d) and 165(5)(b) of the Constitution

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, "Hussein Abdalla Hille & another v Governor County of Marsabit & another;Al-Ul Suna Mosque & Madrassa (Interested Party) [2019] KEELC 4175 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4175/eng@2019-03-27

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