Catherine Wambilyanga v Justin Syombua Musyoka & 3 others [2020] KEELC 2169 (KLR)

Environment and Land Court

12 June 2020

OAO.A. Angote

664 words in judgment

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The bottom line

A Kenyan court ruled only a plaintiff can ask to revive their dismissed land suit, so defendants cannot do it for them.

What this practically means

Executive summary

The Defendants brought a Notice of Motion dated 24th September 2019 seeking review and setting aside of the court's orders dismissing the suit, and that the suit proceed to hearing on its merits. The suit had been commenced by plaint dated 29th August 2013 seeking a permanent injunction restraining the Defendants from trespassing on plots 17 and 18 on L.R No. 12719/479 in Syokimau. On 16th January 2015, Kariuki J had stayed the suit pending conclusion of Nairobi High Court Succession Cause No. 503 of 2013 concerning distribution of the estate of a deceased person. On 13th April 2018 the court, on its own motion, dismissed the suit for want of prosecution, with both parties' advocates served by registered post. The 3rd and 4th Defendants deponed that the succession cause concluded on 28th January 2019 and a Grant was issued, that the dismissal was in error, and that the 4th Defendant's advocate never received the Notice to Show Cause. They were ready to conclude the matter on its merits. The Plaintiff was served but filed no response. The court acknowledged the suit should not have been dismissed while under stay, but held that a reinstatement application should be brought by the plaintiff, since the suit belongs to the plaintiff, who had shown no interest in reviving it. Reinstatement would merely lead to another dismissal and waste judicial time. The application was dismissed with no order as to costs, and the suit stands dismissed. Judgment delivered at Machakos on 12th June 2020.

Key legal issues

Whether a defendant may seek reinstatement of a suit dismissed for want of prosecution

Holding

No; the application should be brought by the plaintiff, and where the plaintiff is indifferent the dismissal should stand

Reasoning

The court reasoned that a suit belongs to the plaintiff, who alone has interest in reviving it. Since the plaintiff was served with the reinstatement application and did not respond, the court inferred the plaintiff had no interest in prosecution. Reinstating a suit no one wishes to prosecute would only result in another dismissal, wasting judicial time.

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Whether the dismissal of 13th April 2018 was in error given the stay orders of Kariuki J

Holding

Yes, the court acknowledged the suit should not have been dismissed while it was stayed pending Nairobi Succession Cause No. 503 of 2013

Reasoning

Kariuki J had on 16th January 2015 stayed the suit pending conclusion of the succession cause, which concluded on 28th January 2019. The dismissal on 13th April 2018 therefore preceded the conclusion of the cause. However, the court held this error did not justify a defendant-initiated reinstatement given the plaintiff's indifference.

p. 2

Legal principles established

An application to reinstate a suit dismissed for want of prosecution should be made by the plaintiff, as the suit 'belongs' to the plaintiff; if the plaintiff is not interested in prosecuting it, the suit ought to remain dismissed

Court orders

1.The Notice of Motion dated 24th September, 2019 is dismissed with no order as to costs
2.The suit stands dismissed

Jurisdiction invoked: Inherent powers to review/set aside own orders; application by Notice of Motion dated 24th September 2019

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Catherine Wambilyanga v Justin Syombua Musyoka & 3 others [2020] KEELC 2169 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2169/eng@2020-06-12

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