Sara Anyiso Martins v Shyam Sing Bansal Bansi Ram [2020] KEELC 40 (KLR)

Environment & Land Court

13 March 2020

AOA.O. Ombwayo

575 words in judgment

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The bottom line

A Kenyan land court reinstated an adverse possession suit dismissed without proper notice to the plaintiff's advocate, despite her two-year delay.

What this practically means

Executive summary

The applicant, the plaintiff in an Originating Summons filed on 16/1/1991 seeking adverse possession of suit property, applied to set aside orders made on 27/9/2017 dismissing her suit for want of prosecution. She argued she was never informed of the date when parties were to show cause why the matter should not be dismissed; her former advocate, M/s M.C. Ouma (Odhiambo Ouma & Company), had repeatedly told her the court file was untraceable, and being uneducated she relied on him until she instructed M/s Otieno Yogo Ojuro & Co. Advocates, who took over and searched for the file. The respondent opposed, contending it had suffered irreparable loss through the applicant's conduct: she had removed the respondent's tenants from the suit property and profited from monthly rents despite the earlier adverse possession order having been set aside. The court found the applicant had shown no serious interest in the matter before dismissal and that her nearly two-year delay in discovering the dismissal was inordinate. However, it held she ought to have been given an opportunity to be heard before dismissal, and the notice to show cause had been served on the wrong firm, Kasamani & Co. Advocates, instead of Odhiambo Ouma & Company. Exercising its discretion, the court allowed the application, reinstated the suit for hearing on merit, and ordered costs in the cause.

Key legal issues

Whether the dismissal of the suit for want of prosecution was procedurally fair

Holding

The dismissal was flawed because the notice to show cause was served on the wrong advocate's firm, so the applicant was not given an opportunity to be heard

Reasoning

The court found it unclear whether the applicant's advocate was served with the notice to show cause, since service was effected on a firm that was not on record. A dismissal for want of prosecution without proper notice to the party or her advocate violates the right to be heard, warranting exercise of discretion to set aside the dismissal.

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Whether the applicant's delay of almost two years in seeking reinstatement was fatal

Holding

The delay was inordinate but did not, in the circumstances, defeat the application

Reasoning

The court found the plaintiff had shown no serious interest in the matter before dismissal and that taking almost two years to realize the suit had been dismissed constituted inordinate delay. Nonetheless, because the dismissal itself was procedurally defective for want of proper notice, the court exercised its discretion in favour of reinstatement.

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Legal principles established

A party ought to be given an opportunity to be heard before a suit is dismissed for want of prosecution

Court orders

1.The application is allowed and the orders dismissing the suit for want of prosecution on 27/9/2017 are set aside
2.The suit is reinstated for hearing and determination on merit
3.Costs in the cause

Jurisdiction invoked: Inherent discretion of the court to set aside its own orders and reinstate a suit dismissed for want of prosecution

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Sara Anyiso Martins v Shyam Sing Bansal Bansi Ram [2020] KEELC 40 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/40/eng@2020-03-13

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