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ELCAllowedNotice of Motion dated 19th June 2017 (suit number not stated in judgment)· [2019] KEELC 4615 (KLR)

Jane Kavinguha Kijusa v Sheila Kageha, Shajanand Construction Co Ltd & Attorney General [2019] KEELC 4615 (KLR)

Environment and Land Court
13 February 2019
665 words in judgment
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The bottom line

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Kenya's Environment and Land Court reinstated a land suit dismissed for delay, finding settlement talks and a wrongly addressed notice justified the plaintiff's inaction.

What this practically means

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Executive summary

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The plaintiff, Jane Kavinguha Kijusa, applied by notice of motion dated 19th June 2017 for the review, recalling and setting aside of an order made on 27th July 2016 dismissing her suit for want of prosecution, and for reinstatement of the suit for hearing. The application was supported by an affidavit of Nelson Misoga, an advocate attached to the plaintiff's firm, and opposed by the 2nd defendant, Shajanand Construction Co. Ltd, through the replying affidavit of its managing director sworn on 20th September 2017. Both sides filed written submissions in April and June 2018. The court framed two issues: whether the plaintiff showed reasonable cause for taking no steps to prosecute the suit for over a year before the dismissal, and costs. The court found that unchallenged correspondence between January 2015 and May 2016 showed the parties were exploring out-of-court settlement; although this was not disclosed to the court or the Deputy Registrar, it could not be ignored in assessing reasonable cause. The court further found, on perusal of the record, that the Order 17 Rule 2 notice dated 14th July 2016 was posted to a wrong postal address (P.O. BOX 269 Vihiga instead of the correct P.O. BOX 296-50310 Vihiga), so neither counsel nor the plaintiff received it. The dismissal was therefore made without giving the plaintiff an opportunity to show cause, and, had the facts been presented, the dismissal would likely not have been made. The plaintiff was found to have shown reasonable cause. By orders dated 13th February 2019, the court reviewed and set aside the dismissal order, reinstated the suit for hearing, and directed that costs be in the cause.

Key legal issues

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01

Whether the plaintiff showed reasonable cause for failing to prosecute the suit for over one year before dismissal

Holding

Yes - ongoing settlement negotiations and a notice sent to a wrong postal address excused the inaction

Reasoning

The court found correspondence dated January 2015 to May 2016 showed the parties were exploring out-of-court settlement, unchallenged by the defendants. Although the court was unaware of these negotiations, they could not be ignored. Additionally, the Order 17 Rule 2 notice was posted to a wrong address (P.O. BOX 269 instead of P.O. BOX 296-50310 Vihiga), so counsel never received it. Had the plaintiff received the notice and shown these facts, the dismissal likely would not have been made.

p. 2
02

Whether the dismissal order of 27th July 2016 should be set aside

Holding

Yes - the order was made without giving the plaintiff an opportunity to show cause, and the plaintiff demonstrated reasonable cause

Reasoning

Because service of the dismissal notice was effected at a wrong address, there was no confirmation counsel or the plaintiff received it. The dismissal was therefore made without giving the plaintiff an opportunity to show cause. The plaintiff's subsequent letter of 31st May 2017 seeking a mention to fix a hearing date further evidenced intention to prosecute. The application of 19th June 2017 was found merited and the dismissal order was reviewed and set aside with the suit reinstated.

p. 2

Legal principles established

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  • A party should not be condemned by an order made without an opportunity to show cause, particularly where service of the dismissal notice was defective.
  • Out-of-court settlement negotiations, even if not brought to the court's attention, are relevant to whether a plaintiff had reasonable cause for not prosecuting a suit for over a year.

Court orders

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  1. 1.The order dated 27th July 2016 dismissing the suit for want of prosecution is reviewed and set aside
  2. 2.The suit is reinstated for hearing and determination
  3. 3.Costs be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2
Jurisdiction invoked
Review of the court's own order dismissing the suit for want of prosecution, under Order 17 Rule 2 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, "Jane Kavinguha Kijusa v Sheila Kageha, Shajanand Construction Co Ltd & Attorney General [2019] KEELC 4615 (KLR)", Case Analysis (2019). Notice of Motion dated 19th June 2017 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4615/eng@2019-02-13

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