Samwel Mwaura Nderi v Nelson Muchiri & 5 others [2020] KEELC 131 (KLR)
The bottom line
#A Kenyan court reinstated a land suit that was dismissed without notice, confirming parties must be served before dismissal or judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the Plaintiff's suit on 3rd December 2018 should be set aside
Yes - the Plaintiff and his Advocates were never served with the Notice to Show Cause, and the Notice itself was improperly issued since Defendants had filed a Defence and Counterclaim, so the dismissal was unprocedural and prejudicial.
Order 17 Rule 2(1) requires notice in writing to parties before dismissal for one year of inaction. The court record showed the Notice dated 16th November 2018 was served only on the Defendants' advocates, with no evidence of service on the Plaintiff's advocates. Further, since a Defence and Counterclaim had been filed and served on 25th October 2018, the premise that no step had been taken was incorrect. Natural justice requires that a party be heard before an adverse order is made.
Whether the Judgment of 2nd May 2019 entered on the Defendants' Counterclaim should be set aside
Yes - it follows automatically from setting aside the dismissal, and independently because the hearing notice was served at 2.04 p.m. on 5th December 2018 for a hearing the next morning, giving insufficient time to prepare.
Having set aside the proceedings of 3rd December 2018, the judgment founded on them must also fall to allow the Plaintiff to ventilate his case. The court also found the hearing notice was served on the Plaintiff's advocate on 5th December 2018 at 2.04 p.m. for a hearing on 6th December 2018, which was not sufficient preparation time, constituting sufficient cause for non-attendance.
Whether the application was brought with inordinate delay
No - the judgment was delivered on 2nd May 2019 and the application filed on 14th May 2019, a delay of about 12 days which was not inordinate.
The Respondents contended the application was brought over four months after the dismissal, but the court held that the relevant trigger was learning of the judgment, and that once a matter is reserved for judgment the file is in the custody of the judicial officer who heard it, explaining the inability to access it earlier. Service Week circumstances were also considered.
Whether the Respondents would be prejudiced by reinstatement
No - the Defendants will have a chance to present their case, so no prejudice is occasioned.
The court applied the principle that the discretion to set aside exists to avoid injustice, citing Shah v Mbogo, and found that reinstatement allows the Plaintiff, who appears to have a claim to be heard on the merits regarding parcel 3762, to be heard, while the Defendants retain the opportunity to prove their case.
Legal principles established
#- Where a suit is dismissed for want of prosecution after a Notice to Show Cause, that notice must be served on all parties; a party never served with the Notice to Show Cause is entitled to have the dismissal set aside.
- The discretion to set aside ex parte judgments and dismissals is wide and is exercised to do justice between the parties.
Court orders
#- 1.The orders made on 3rd December 2018 dismissing the Plaintiff's suit are set aside and the suit reinstated
- 2.The Judgment entered on 2nd May 2019 against the Plaintiff and all consequential orders are set aside
- 3.The parties should prosecute the reinstated suit expeditiously
- 4.Costs of the application to be in the cause
- Jurisdiction invoked
- Original civil jurisdiction; application under Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Mwaura Nderi v Nelson Muchiri & 5 others [2020] KEELC 131 (KLR)", Case Analysis (2020). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/131/eng@2020-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.