Benson Njeru Muriria v Syokimau Farm Limited & another; John Kilolo Mang’eli & another (Interested Parties) [2020] KEELC 2719 (KLR)
The bottom line
#A Kenyan court gave a landowner a second chance, reviving his 2012 land suit dismissed for delay, but he must pay costs and quickly fix his filings.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata
The application is not res judicata because the court never heard on merit any earlier application, oral or otherwise, to set aside the dismissal order
After dismissing the suit on 29th July, 2019 the court only granted a stay of proceedings for 21 days pending a formal application for stay. The Plaintiff never had an application to set aside the dismissal determined. Res judicata requires identical parties, concurrence of jurisdiction, same subject matter and a final determination on merit; none existed here, so the present application was properly before the court.
Whether the dismissal for want of prosecution should be set aside
Yes; the discretion was exercised in the Plaintiff's favour because the delay was not solely attributable to him and dismissing an emotional land dispute for counsel's mistake would be prejudicial
The court applied Shah vs. Mbogo and the Mwangi S. Kimenyi guidelines on delay and prejudice. The suit was not ready for hearing between 2012 and 2017; adjournments before 29th July, 2019 were granted for good reason; the Plaintiff's counsel was engaged in anti-corruption matters which the Chief Justice had directed be prioritised; and the 2nd Defendant had also not prosecuted his Counter-claim. Setting aside the dismissal served substantive justice.
Whether leave to amend pleadings and file a Defence to the Counter-Claim out of time should be granted
Yes, under Order 8 Rule 5(1), but documents filed without leave (the purported Amended Plaint of 23rd September, 2019 and the Reply to Defence and Defence to Counter-claim) pass only as drafts
Having set aside the dismissal, the court invoked Order 8 Rule 5(1) permitting amendments to determine the real question in controversy, guided by Central Kenya Limited vs. Trust Bank. The documents filed without leave could not stand as filings but leave was granted to regularise them within 30 days in the interest of justice.
Legal principles established
#- A matter is res judicata only where there is a final determination on record, heard on merit, between the same parties
- The court's discretion to set aside a dismissal for want of prosecution should be exercised to avoid injustice or hardship from accident, inadvertence or excusable mistake, not to assist a party who deliberately obstructed or delayed justice
- Amendments should be freely allowed at any stage provided no prejudice is caused that cannot be compensated in costs
Court orders
#- 1.The order of this Court of 29th July, 2019, dismissing the Plaintiff's suit for want of prosecution be and is hereby set aside
- 2.The Plaintiff is granted leave to file and serve a Reply to Defence and Defence to the Counter-claim within 30 days of the date of this Ruling
- 3.The Plaintiff is granted leave to file and serve his Amended Plaint within 30 days of the date of this Ruling
- 4.The Defendants are at liberty to file and serve their Amended Defence and Counter-claim within 30 days of service of the Amended Plaint
- 5.The Plaintiff to pay to the 1st Defendant thrown away costs of Kshs. 20,000 before the next hearing date
- 6.This suit to be fixed for hearing on a priority basis
- 7.Each party to bear its costs for the Application
- Jurisdiction invoked
- Inherent powers of the court under Order 12 Rule 7, Order 51 Rule 1, Order 50 Rule 6 and Order 8 Rule 5(1) of the Civil Procedure Rules and section 95 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Njeru Muriria v Syokimau Farm Limited & another; John Kilolo Mang’eli & another (Interested Parties) [2020] KEELC 2719 (KLR)", Case Analysis (2020). ELC Case (Machakos) – Notice of Motion dated 31st July, 2019 (suit filed 14th November, 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2719/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.