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ELCDismissedNotice of Motion dated 12th October 2018 (suit filed 6th July 2006)· [2020] KEELC 2099 (KLR)

Gio Fo Investments Limited v Martin Charo Mwanduka & 3 others [2020] KEELC 2099 (KLR)

Environment and Land Court
17 June 2020
JOJ.O. Olola
778 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi refused to revive a 14-year-old land suit because the defendants offered no proof of why it had stalled.

What this practically means

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Executive summary

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The four defendants moved the court by Notice of Motion dated 12th October 2018 seeking to set aside the order of 11th October 2018 dismissing their suit (and consequential proceedings) for want of prosecution, following a Notice to Show Cause dated 30th July 2018. They alleged the court file had gone missing after the death of the plaintiff's advocate in August 2017, that they were advised to apply for reconstruction of the file, and that their former counsel failed to give necessary information at the show-cause hearing despite a pending counterclaim. The plaintiff, Gio Fo Investments Ltd, opposed, noting the suit was filed in 2006, that the defendants took no steps to prosecute it for over 12 years, and that the real motive was to introduce a time-barred adverse possession claim. J.O. Olola J reviewed the litigation history: filings and cross-applications for injunction in 2006, a ruling by W. Ouko J in November 2006, then inactivity until 2012 and again until 2016, with no steps for two further years before dismissal. The court held that the defendants produced no evidence that the file was missing or for what period, nor of diligent efforts to prosecute their defence and counterclaim in the 14 years since filing. Reiterating that a court's discretion must be exercised judiciously on facts and law, and that a party seeking reinstatement must demonstrate the circumstances preventing prosecution, the judge declined to exercise discretion in the defendants' favour. The Motion dated 12th October 2018 was dismissed with no order as to costs.

Key legal issues

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01

Whether the dismissal for want of prosecution should be set aside

Holding

The application was dismissed; the defendants failed to prove the file was missing or that they diligently pursued the suit

Reasoning

The suit was filed in 2006 and lay dormant for long periods despite a 2006 ruling by W. Ouko J. The defendants produced no evidence that the file was missing or for how long, nor of diligent efforts to prosecute their defence and counterclaim over the 14 years. Discretion must be exercised judiciously, and the applicants failed to demonstrate the circumstances preventing prosecution.

p. 2

Legal principles established

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  • A court's discretion to reinstate a dismissed suit must be exercised judiciously on facts and law, and the applicant must demonstrate the circumstances that prevented prosecution of the matter

Court orders

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  1. 1.The Motion dated 12th October 2018 is dismissed
  2. 2.No order as to costs
Jurisdiction invoked
Inherent discretion to reinstate a suit dismissed for want of prosecution

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, "Gio Fo Investments Limited v Martin Charo Mwanduka & 3 others [2020] KEELC 2099 (KLR)", Case Analysis (2020). Notice of Motion dated 12th October 2018 (suit filed 6th July 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2099/eng@2020-06-17

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