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ELCAllowed· [2020] KEELC 3099 (KLR)

Faith Wangu Maina v Doris Njoki Njiru t/a Giant Auctioneers & 2 others [2020] KEELC 3099 (KLR)

Environment and Land Court
13 March 2020
ECE.C. Cherono
1,650 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 reinstated a land case it had dismissed too early, because the summons were still legally valid for another two months.

What this practically means

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Executive summary

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The plaintiff/applicant moved the Environment and Land Court at Kerugoya by Notice of Motion dated 10th May 2019 under Articles 50 and 159(2) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 CPR, seeking to set aside the court's order of 30th July 2018 dismissing her suit, to reinstate the suit, to extend time for service of summons and pleadings, and to restrain the defendants from dealing with title No. MWEA/NGUCWI/326. She deponed that she had instructed the 2nd defendant, an advocate, under an oral agreement to represent her in Wanguru SRMCC No. 58 of 2006 and had deposited the title as security; after a dispute over fees, the 2nd defendant obtained a taxed bill of Kshs. 251,379 and executed against the property, which was sold and transferred to his wife. The respondents opposed, arguing the suit had abated for failure to serve summons within twelve months and that the 1st defendant had enjoyed possession for six years under a valid decree. The court, per E.C. Cherono J, held that the summons issued on 11th October 2017 were valid for twelve months and would only expire on 10th October 2018, so the dismissal on 30th July 2018 was premature and constituted an error apparent on the face of the record, applying Nyamogo & Nyamogo v Kogo. Allowing the application, the court set aside the dismissal and consequential orders, reinstated the suit, re-issued and extended the summons for six months, restrained dealings with the suit property pending hearing, and ordered costs of the application to be costs in the cause.

Key legal issues

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01

Whether the dismissal of the suit on 30th July 2018 was premature

Holding

Yes - the summons issued on 11th October 2017 was valid for twelve months (to 10th October 2018), so the dismissal on 30th July 2018 preceded the expiry of the summons' lifespan.

Reasoning

Order 5 Rules 2 and 7 CPR provide that a summons is valid for twelve months from issue, and the court may dismiss a suit without notice only after twenty-four months where no extension application is made. The court computed that the summons issued on 11th October 2017 would expire on 10th October 2018, yet the suit was dismissed on 30th July 2018 on its own motion. The dismissal therefore preceded the crystallisation of the summons' validity and was an error apparent on the face of the record.

p. 2
02

Whether the court could exercise inherent powers to set aside the dismissal

Holding

Yes - the court invoked its inherent powers under Sections 1A, 1B and 3A CPA and Article 159 of the Constitution to correct an error apparent on the face of the record in the interest of justice.

Reasoning

Applying the definition in Nyamogo & Nyamogo v Kogo, the court found that where an error on a substantive point of law stares one in the face with no possibility of two opinions, it is an error apparent on the face of the record. The premature dismissal met that threshold, so the dismissal order was liable to be reviewed and the application for reinstatement was merited.

p. 2

Legal principles established

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  • A suit dismissed before the expiry of the twelve-month validity of the original summons is dismissed prematurely and the dismissal is an error apparent on the face of the record reviewable in the interest of justice.

Court orders

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  1. 1.The order of 30th July 2018 dismissing the suit and all consequential orders set aside and the suit reinstated
  2. 2.Summons to enter appearance issued on 11th October 2017 re-issued and extended for six months from the date of the ruling
  3. 3.Injunction restraining the defendants/respondents, their servants, agents and/or employees from disposing of, transferring or dealing with title No. MWEA/NGUCWI/326 pending hearing and determination of the suit
  4. 4.Costs of the application to be costs in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 50, 159(2)(a, d & e)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 5 Rules 2 and 7; Order 51 Rule 1

Cases cited (6)

  • Sebei District Administration Vs Gaysali
    (1968) E.A 300
  • Pan African Paper Mills Limited Vs Silvester Nyarango Obwocha
    (2018) e K.L.R
  • Philiph Chemwolo & Another Vs Augustine Kubede
    (1982 – 88) K.A.R 103
  • Belunda Murai and others Vs Amoi Wainaina
    (1978) e K.L.R
  • Wachira Karani Vs Bildad Wachira
    (2016) e K.L.R
  • Nyamogo & Nyamogo Vs Kogo
    (2001) E.A. 174
Jurisdiction invoked
Articles 50, 159(2)(a, d & e) of the Constitution; Sections 1A, 1B, 3A Civil Procedure Act; Order 51 Rule 1 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, "Faith Wangu Maina v Doris Njoki Njiru t/a Giant Auctioneers & 2 others [2020] KEELC 3099 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3099/eng@2020-03-13

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