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ELCDismissedNot stated in the judgment· [2019] KEELC 4816 (KLR)

Barlet Limited v Tom Odera & another; Pacifica Theisin (Applicant) [2019] KEELC 4816 (KLR)

Environment and Land Court of Kenya
30 January 2019
CYC. Yano
1,016 words in judgment
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The bottom line

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The Mombasa Environment and Land Court confirmed that once a Kenyan suit is withdrawn, it cannot be revived — a fresh case is the only option.

What this practically means

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Executive summary

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The applicant, Pacifica Theisin, through her donee of Power of Attorney Isaiah Ombasa Nyaribo, moved the court by Notice of Motion dated 7th January 2018 seeking reinstatement of a suit said to have been withdrawn on 6th March 2017, her joinder as a defendant, and an interim injunction restraining dealing with plot No. Mombasa/Mwembelegeza/643. She contended that the purported vendor, Omae Omwoyo Mose, had neither title nor right to transfer the property, rendering the sale to the plaintiff a nullity. The plaintiff, Ankit Doshi, opposed through grounds of opposition and a replying affidavit, arguing the withdrawal was procedural under Order 25 Rule 1 and that the applicant, never being a party, lacked locus standi. The court found the suit was properly withdrawn by notice filed on 3rd February 2017 without objection. It held that a suit withdrawn under Order 25 of the Civil Procedure Rules cannot be reinstated; the remedy is a fresh action, with Order 25 Rule 4 governing subsequent suits. The court further held it cannot compel a party to sue another, joinder being available only in a pending suit. The applicant not having been a party to the former suit, the application lacked merit. The Notice of Motion was dismissed with costs to the plaintiff/respondent, the court finding it unnecessary to consider the other prayers which depended on reinstatement. Judgment delivered at Mombasa on 30th January 2019 by C. Yano, Judge.

Key legal issues

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01

Whether a suit withdrawn under Order 25 Rule 1 of the Civil Procedure Rules may be reinstated

Holding

It may not; the withdrawal is final and the aggrieved party's remedy is to institute a fresh action, subject to Order 25 Rule 4 on payment of costs

Reasoning

The court held that Order 25 Rule 1 allows a plaintiff to discontinue before setting down for hearing without the withdrawal being a defence to a subsequent action. Order 25 Rule 4 contemplates subsequent suits on the same cause of action, not reinstatement. Hence the law does not envisage an order of reinstatement of a withdrawn suit.

p. 2
02

Whether a non-party has locus standi to seek reinstatement of a withdrawn suit and compulsory joinder as defendant

Holding

No. The applicant was not a party to the withdrawn suit, and the court cannot compel a plaintiff to sue her absent a pending suit

Reasoning

The applicant was never a party to the suit which was withdrawn and was unrepresented in it. The court agreed with the plaintiff that compelling a party to sue another is impermissible; joinder is only available in an existing suit pending before the court. Here there was no suit pending, so the application fell away.

p. 2

Legal principles established

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  • A suit withdrawn pursuant to Order 25 of the Civil Procedure Rules cannot be reinstated; the party's remedy is to institute a fresh action
  • A court cannot compel a party to sue another party; joinder is only available where there is a suit pending

Court orders

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  1. 1.The Notice of Motion dated 7th January 2018 is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(c)
  • Civil Procedure RulesOrder 25 Rule 1
  • Civil Procedure RulesOrder 25 Rule 4
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act and all enabling provisions of the law

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, "Barlet Limited v Tom Odera & another; Pacifica Theisin (Applicant) [2019] KEELC 4816 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4816/eng@2019-01-30

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