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ELCAllowedJudicial Review Application (Notice of Motion dated 5th August, 2019)· [2020] KEELC 1022 (KLR)

Republic v Chairman, Land Disputes Tribunal, Mutomo Sub-District;Ex-parte Applicant: Titus Kitili Kinyumu ; Mutua Kavunduu(Interested Party) [2020] KEELC 1022 (KLR)

High Court of Kenya
9 October 2020
1,279 words in judgment
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The bottom line

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The High Court in Machakos reinstated a 2004 judicial review case, ruling a case cannot be dismissed for delay that wasn't the party's fault.

What this practically means

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Executive summary

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The ex-parte Applicant moved the court by Notice of Motion dated 5th August, 2019 seeking review and setting aside of an order made on 4th June, 2018 dismissing his Notice of Motion dated 3rd November, 2004 for want of prosecution, and reinstatement of that Motion for hearing. The substantive Motion, filed after leave granted on 14th October, 2004 to apply for certiorari against proceedings and Awards of the Mutomo Land Dispute Tribunal in Land Case numbers 49 and 50 of 2003, had been listed for hearing several times between 2005 and 2013 but was repeatedly adjourned, affected by questions over the High Court's jurisdiction over environment and land matters, and could not proceed because the court file went missing. The Applicant's counsel produced letters dating from 2014 to 2018 showing repeated attempts to fix the matter for hearing. The Interested Party opposed, contending the Motion had lain unprosecuted for close to fourteen years and that no credible explanation for the inordinate delay had been given. The court found no evidence that the Applicant's counsel was served with the notice to show cause issued on 4th May, 2018 before the dismissal on 4th June, 2018, and held that the Applicant's many documented attempts to fix the matter showed the delay was not of his making but attributable to the court registry. The court allowed the Application as prayed, reviewing and setting aside the dismissal order, reinstating the Motion dated 3rd November, 2004 for hearing on merit, with costs of the Application to be costs in the cause.

Key legal issues

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Whether the dismissal for want of prosecution under Order 17 Rule 2 should stand where the notice to show cause was not served and the delay was not the Applicant's fault

Holding

The dismissal order was set aside because there was no evidence of service of the notice to show cause on the Applicant's counsel, and the Applicant had demonstrated sustained efforts to have the matter fixed for hearing; the delay was attributable to the court registry, not the Applicant.

Reasoning

The court noted that the Applicant's advocate made numerous documented attempts (letters between 2014 and 2018) to fix the matter for hearing, and that the file could not be traced for years. Had counsel been served with the notice to show cause, he would have attended court. In these circumstances the dismissal was inappropriate and the Application dated 5th August, 2019 was allowed as prayed.

p. 2

Legal principles established

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  • A suit should not be dismissed for want of prosecution where the delay is not attributable to the party and the party was not served with the notice to show cause

Court orders

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  1. 1.The order of the court given on 4th June, 2018 dismissing the Notice of Motion for want of prosecution is reviewed and set aside
  2. 2.The ex-parte Applicant's Notice of Motion dated 3rd November, 2004 is reinstated for hearing and determination on merit
  3. 3.Costs of the Application to be costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)
Jurisdiction invoked
Review jurisdiction over orders in judicial review proceedings; leave granted on 14th October, 2004 to apply for Judicial Review by way of an order of certiorari

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, "Republic v Chairman, Land Disputes Tribunal, Mutomo Sub-District;Ex-parte Applicant: Titus Kitili Kinyumu ; Mutua Kavunduu(Interested Party) [2020] KEELC 1022 (KLR)", Case Analysis (2020). Judicial Review Application (Notice of Motion dated 5th August, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1022/eng@2020-10-09

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