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ELCDismissedNotice of Motion application dated 12th November 2019 (suit formerly Mombasa High Court Civil Case No. 46 of 2007, transferred to Malindi)· [2020] KEELC 2649 (KLR)

Jacob H Saleri v Town Council of Kilifi [2020] KEELC 2649 (KLR)

Environment and Land Court
6 May 2020
1,195 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 12th November 2019 by the Plaintiff, Jacob H.M Saleri, seeking to set aside an order of 14th October 2019 dismissing his reinstatement application for want of prosecution and/or non-attendance. The underlying suit, originally Mombasa High Court Civil Case No. 46 of 2007, was transferred to Malindi in May 2015 by consent. After years of inaction, the Court issued a Notice to Show Cause under Order 17 Rule 2(1) of the Civil Procedure Rules in February 2019; neither party appeared and the suit was dismissed on 28th March 2019. The Plaintiff's application of 18th April 2019 to reinstate the suit was itself dismissed on 14th October 2019 when his Advocate did not attend, citing a matatu breakdown en route from Mombasa to Malindi. The Defendant, Town Council of Kilifi, opposed, asserting the Plaintiff had never been keen to prosecute the case. Applying the principles in Patel v EA Cargo Handling Services Ltd and Shah v Mbogo on the discretion to set aside orders, the Court found the explanation for non-attendance unsupported by evidence, implausible, and unaccompanied by any prompt follow-up, as Counsel waited a month before moving the Court. Declining to exercise its discretion in the Plaintiff's favour, the Court dismissed the application dated 12th November 2019 with no order as to costs. Judgment delivered at Malindi on 6th May 2020 by J.O. Olola, Judge.

Key legal issues

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01

Whether the discretionary power to set aside dismissal for want of prosecution should be exercised in favour of the Plaintiff

Holding

The Court declined to exercise its discretion in the Plaintiff's favour, finding the suit marked by years of inaction and the explanation for non-attendance unsupported.

Reasoning

The suit had been stood over generally in 2010, transferred in 2015, and dismissed in 2019 after neither party appeared on the Notice to Show Cause. The reinstatement application itself was dismissed on 14th October 2019 for non-attendance. Counsel's excuse of a matatu breakdown was unsupported by affidavit evidence, and he took no steps for a month after the dismissal. The Court found no indication of genuine prosecution of the matter.

p. 2
02

Whether Counsel's explanation of a matatu breakdown and a purported call to a court clerk justified setting aside the dismissal

Holding

The explanation was rejected as unsupported and implausible.

Reasoning

There was no affidavit from the clerk or any other evidence of the alleged call, and it was unclear why Counsel did not directly contact another Advocate to hold his brief. Although Counsel claimed to have arrived in Court at 11.00 a.m., he took no action until filing the application one month later, undermining the claim of diligence.

p. 2

Legal principles established

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  • The Court's discretion to set aside an order or dismissal is wide but must be exercised to do justice to the parties and not to assist a party who has deliberately obstructed or delayed the cause of justice
  • The discretion to set aside is meant to relieve against accident, inadvertence or excusable mistake, not deliberate delay or evasion

Court orders

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  1. 1.The application dated 12th November 2019 was dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 17 Rule 2(1)

Cases cited (2)

  • Patel –vs- EA Cargo Handling Services Ltd
    (1974) EA 75
  • Shah –vs- Mbogo
    (1967) EA 166
Jurisdiction invoked
Discretionary power to set aside orders/dismissals under the Civil Procedure Rules (suit dismissed under Order 17 Rule 2(1) of the Civil Procedure Rules)

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, "Jacob H Saleri v Town Council of Kilifi [2020] KEELC 2649 (KLR)", Case Analysis (2020). Notice of Motion application dated 12th November 2019 (suit formerly Mombasa High Court Civil Case No. 46 of 2007, transferred to Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2649/eng@2020-05-06

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