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ELCDismissedApplication dated 1/12/2015 (suit filed in 1996; case number not stated in the judgment)· [2020] KEELC 3214 (KLR)

Lucie Nduko Mwangangi v Kahawa Sukari Limited; Josephine Awour (Interested Party) [2020] KEELC 3214 (KLR)

Environment and Land Court
5 March 2020
KBK. BOR
853 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to revive a land case dismissed years earlier, because the plaintiff waited three and a half years without explaining the delay.

What this practically means

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Executive summary

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By an application dated 1/12/2015, the Plaintiff sought stay of execution of the decree and setting aside of what she termed an ex parte judgment, contending that her advocates were neither served with a hearing notice nor invited to fix the hearing date. The Interested Party (who had purchased the suit property from the Defendant, taken possession and fenced it) swore through Paul Amuga Advocate that no ex parte judgment existed, as the suit had been dismissed on 4/7/2012 for want of prosecution after an application served on the Plaintiff's advocates. The Defendant, Alice Wacheke Muiruri, opposed the application, arguing the Plaintiff had not established any legal or factual basis for the discretionary relief sought. In a further affidavit the Plaintiff conceded her advocates were served with the dismissal application and failed to attend court on 4/7/2012 because they had not diarized the matter and were attending to other matters in Machakos, only learning of the dismissal on 7/7/2015. Her counsel relied on Article 159 of the Constitution and the Giro Commercial Bank case, urging that a mistake of counsel should not be visited on a client. The court framed one issue: whether the orders sought should be granted. It held the Plaintiff had not explained the inordinate delay - the suit was filed in 1996, dismissed on 4/7/2012, the application filed three and a half years later and argued almost five years after that - and found her indolent. The application was dismissed with costs to the Defendant and the Interested Party.

Key legal issues

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Whether the Plaintiff's application dated 1/12/2015 for stay of execution and setting aside of the judgment should be granted

Holding

The application was declined because of the Plaintiff's inordinate and unexplained delay

Reasoning

The suit was filed in 1996 and dismissed on 4/7/2012 following an application for dismissal for want of prosecution. The Plaintiff took three and a half years to file the reinstatement application, which was argued almost five years later. Her explanation - that counsel failed to diarize the hearing date and were attending to other matters in Machakos - did not excuse the delay in moving the court after the dismissal. The court found the Plaintiff had been indolent and refused to exercise its discretion in her favour.

p. 1

Legal principles established

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  • An applicant seeking to set aside a dismissal for want of prosecution must explain inordinate delay; equity aids the vigilant, not the indolent
  • Equitable relief is discretionary and available only to a deserving party who lays a proper basis for the exercise of that discretion

Court orders

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  1. 1.The court declines to grant the orders sought in the Plaintiff's application dated 1/12/2015
  2. 2.The Defendant and the Interested Party are awarded the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159

Cases cited (1)

  • Giro Commercial Bank Limited v Jasvinder Singh Dhadialla
    [2005] eKLR
Jurisdiction invoked
Inherent jurisdiction of the court to set aside ex parte/dismissal orders, with counsel invoking Article 159 of the Constitution

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, "Lucie Nduko Mwangangi v Kahawa Sukari Limited; Josephine Awour (Interested Party) [2020] KEELC 3214 (KLR)", Case Analysis (2020). Application dated 1/12/2015 (suit filed in 1996; case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3214/eng@2020-03-05

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