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ELCDismissedNot stated in judgment· [2020] KEELC 2124 (KLR)

Joseph Malit Maeku & 60 others v Nkurunah Ole Masikonde & 7 others (Environment & Land Case 44 of 2017) [2020] KEELC 2124 (KLR)

High Court of Kenya (not expressly stated; delivered by a Judge at Narok)
11 June 2020
MKMohammed Kullow
569 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to reinstate a dismissed preliminary objection because the party waited eighteen months with no good explanation for the delay.

What this practically means

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Executive summary

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The Defendants/Applicants moved the court by a Notice of Motion dated 10th October, 2019 seeking to set aside the dismissal of their Notice of Preliminary Objection dated 10th January, 2019 and to have it reinstated. They argued that the Preliminary Objection, which they said raised a point of law going to the root of the case, was dismissed without notice due to non-attendance by both parties, that reinstatement would serve the interests of justice, and that the respondent would suffer no prejudice. The application was supported by an affidavit of their advocate, Mr. Ojwang Agina, who attributed the dismissal to non-attendance. The respondent/plaintiff opposed the application through grounds of opposition and a replying affidavit, contending it was incompetent and that the applicant had not diligently explained the non-attendance. In a ruling delivered at Narok on 11th June, 2020, Mohammed Kullow Judge noted that the applicants' advocate had not explained the cause of the non-attendance beyond calling it a mistake, and that the application was filed almost one and a half years after the dismissal order of 4th April, 2018, amounting to inordinate delay. Considering that the suit had been in court since 2011 with countless applications and that the court had directed the suit be set down for hearing, the court found the application lacking in merit and dismissed it, holding that allowing it would further delay the substantive suit. No costs order was recorded.

Key legal issues

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01

Whether to set aside the dismissal of the Preliminary Objection and reinstate it

Holding

Application dismissed for inordinate delay and lack of plausible explanation

Reasoning

The court noted the applicant and counsel did not attend when the Preliminary Objection was dismissed, and the affidavit did not explain the cause of non-attendance beyond calling it a mistake. The dismissal order was made on 4th April 2018 but the application was filed on 10th October 2019, about one and a half years later, which the court found to be inordinate delay. Allowing the application would further delay the substantive suit, which has been in court since 2011 with countless applications.

p. 1

Legal principles established

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  • A party seeking reinstatement of an order dismissed for non-attendance must explain both the non-attendance and any delay in moving the court; unexplained delay of about one and a half years constitutes inordinate delay

Court orders

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  1. 1.The Notice of Motion dated 10th October, 2019 is dismissed
Jurisdiction invoked
Inherent discretion of the court to set aside/reinstate orders dismissed for non-attendance (not expressly cited in the judgment)

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, "Joseph Malit Maeku & 60 others v Nkurunah Ole Masikonde & 7 others (Environment & Land Case 44 of 2017) [2020] KEELC 2124 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2124/eng@2020-06-11

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