Elizabeth Wangechi Mwai Suing as the Administrator of the Estate of Peter Mwai Mburati (Deceased) & Jamleck Mwangi Njoka & 3 others [2019] KEELC 4347 (KLR)
The bottom line
#A Kenyan court confirmed that a suit dismissed for want of prosecution can only be revived through an appeal, not by asking the same judge to set the dismissal aside.
What this practically means
#Executive summary
#Key legal issues
#Availability of Order 17 Rule 2(2) CPR to set aside a dismissal for want of prosecution
The application lacks merit and is incompetent; the applicant should have appealed via the Notice of Appeal filed on 7th August 2018
Order 17 Rule 2(1) permits the court to dismiss a suit where no step has been taken for one year after notice. Rule 2(2) governs orders where cause IS shown to the court's satisfaction, not restoration after dismissal. Having failed to show sufficient cause on 23rd and 25th July 2018, the plaintiff's dismissal could only be challenged on appeal, and setting aside and appeal are mutually exclusive remedies.
Whether the plaintiff showed sufficient cause for failing to prosecute
No; the plaintiff was given an opportunity to explain the delay but failed to provide satisfactory reasons, and counsel did not attend on 25th July 2018
The suit, filed in 2003, had lain dormant. On the notice to show cause date of 23rd July 2018 the explanation of a pending application was insufficient; the court adjourned to 25th July 2018 to allow better reasons, but plaintiff's counsel was absent and the holding-brief advocate knew nothing of the file. The court therefore did 'the inevitable' and dismissed the suit.
Legal principles established
#- A dismissal order under Order 17 Rule 2(1) CPR cannot be set aside under Order 17 Rule 2(2) CPR; the remedy is an appeal
- An application to set aside a dismissal and a Notice of Appeal are mutually exclusive remedies that cannot be pursued together
Court orders
#- 1.The application dated 27th July 2018 is dismissed as lacking merit, incompetent and an abuse of the court process
- 2.No order as to costs
- Jurisdiction invoked
- Order 17 Rule 2(2) Civil Procedure Rules (invoked by applicant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Wangechi Mwai Suing as the Administrator of the Estate of Peter Mwai Mburati (Deceased) & Jamleck Mwangi Njoka & 3 others [2019] KEELC 4347 (KLR)", Case Analysis (2019). ELC No. 651 of 2013 (originally HCCC No. 168/2003, later HCCC No. 75 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4347/eng@2019-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.