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ELCPartially AllowedELC MISC. APPL. NO. 11 OF 2020· [2020] KEELC 225 (KLR)

Henry Shikuku Barasa & 2 others v Reuben Fwamba Mbita [2020] KEELC 225 (KLR)

Environment and Land Court
13 October 2020
MNMwangi Njoroge
546 words in judgment
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The bottom line

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A Kenyan court can reverse a dismissal for want of prosecution when the delay was the court registry's fault, not yours.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge J) on a Notice of Motion dated 24th July 2020 brought by the applicants, representatives of Matisi Outreach Church, under Sections 3A and 80 of the Civil Procedure Act and Order 45 rules 1(1) and 2 and Order 51(1) of the Civil Procedure Rules 2010. The applicants sought review of the court's ruling of 21st July 2020, which had dismissed their application dated 13th February 2020 for want of prosecution. After prayers 1 to 4 were dealt with preliminarily, the court determined prayers 5, 6, 7, 8 and 9, namely reinstatement of the application dated 13th February 2020, deeming of the submissions filed on 22nd July 2020 as properly on record, directions for hearing of the earlier application, further orders, and costs. Counsel for the applicants swore an affidavit exhibiting email communications with the registry showing the submissions had been lodged electronically on 22nd June 2020. The court was persuaded that the submissions were timeously filed and that the failure to consider them was attributable to the court registry's inadvertence rather than any default by the applicants. It therefore granted prayers 5, 6 and 7, vacated the dismissal order of 21st July 2020, directed that the application dated 13th February 2020 be disposed of on the parties' written submissions (with the applicant's submissions in Kitale Misc No. 3 of 2020 placed on that file), fixed delivery of the ruling for 5th November 2020, and ordered each party to bear its own costs of the instant application.

Key legal issues

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Review of dismissal for want of prosecution where the default is attributable to the court registry

Holding

The dismissal order of 21/7/2020 was vacated because the applicant's submissions were timeously filed and the failure to consider them was the fault of the court registry, not the applicant.

Reasoning

The court was satisfied, on the affidavit of counsel and the annexed email communications between counsel's office and the registry dated 22nd and 23rd June 2020, that the submissions had been lodged timeously by electronic mail. The court therefore found the non-consideration of the submissions in the ruling of 21/7/2020 to be an inadvertence of the registry, making it just to review and vacate the dismissal so the underlying application could be decided on its merits.

p. 1

Legal principles established

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  • Where submissions are timeously lodged but not brought to the court's attention due to the court registry's inadvertence, a dismissal for want of prosecution based on that omission may be reviewed and vacated in the interest of justice.

Court orders

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  1. 1.The order of the court made on 21/7/2020 dismissing the application dated 13th February 2020 is vacated
  2. 2.The submissions dated 19th July 2020 and filed on 22nd July 2020 are deemed properly filed and served on record
  3. 3.Directions issued that the application dated 13th February 2020 be disposed of by way of the written submissions filed by the parties
  4. 4.A copy of the applicant's submissions in Kitale Misc No. 3 of 2020 to be placed in that file and the same brought up for preparation of a ruling
  5. 5.Ruling on the application dated 13th February 2020 to be delivered on 5/11/2020
  6. 6.Each party to bear its own costs of the instant application

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Civil Procedure Rules 2010Order 45 rule 1(1)
  • Civil Procedure Rules 2010Order 45 rule 2
  • Civil Procedure Rules 2010Order 51 rule 1
Jurisdiction invoked
Sections 3A and 80 of the Civil Procedure Act and Order 45 rule 1(1), 2 and Order 51(1) of the Civil Procedure Rules 2010

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, "Henry Shikuku Barasa & 2 others v Reuben Fwamba Mbita [2020] KEELC 225 (KLR)", Case Analysis (2020). ELC MISC. APPL. NO. 11 OF 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/225/eng@2020-10-13

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