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ELCDismissedNot stated in judgment· [2020] KEELC 3524 (KLR)

Johnstone Hunter Ambale v Veronica Lunani Matekwa [2020] KEELC 3524 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Kakamega)
19 February 2020
518 words in judgment
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The bottom line

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Kenya's High Court refused to reinstate a 2006 land case dismissed for inaction, ruling that counsel's excuse for missing court was unacceptable.

What this practically means

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Executive summary

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The applicant, Timothy Omwando Mbaka, advocate for the deceased plaintiff, moved the court by application dated 16th November 2019 under sections 3 and 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2010, seeking setting aside of the closure/dismissal of the suit for want of prosecution on 4th November 2019 and reinstatement of the suit for hearing. He contended that on the material day he was held up before Kakamega High Court No. 1 in Succession Cause No. 814 of 2009, arrived at about 9.15 a.m. after the call-over, and that the busy schedule of counsel should not be visited upon an innocent litigant. The court noted the suit, filed in 2006, was dismissed after the applicant was given a final adjournment on 16th July 2019 in his presence; the plaintiff died on 15th June 2016 and was never substituted; and the reasons advanced for non-attendance were unacceptable. Relying on Utalii Transport Company Ltd v NIC Bank and the Ivita v Kyumbu test - whether the delay is prolonged and inexcusable and whether justice will be done despite the delay - the court found no merit in the application, dismissed it with costs, and the suit was not reinstated.

Key legal issues

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01

Whether the dismissal for want of prosecution should be set aside

Holding

Application dismissed; the suit was not reinstated

Reasoning

The suit was dismissed on 4th November 2019 after a final adjournment given on 16th July 2019 in the applicant's presence. The plaintiff had died in 2016 without substitution, and the suit, filed in 2006, was old. Counsel's excuse of being held up in another court was rejected as unacceptable, and reinstatement would not serve the interests of justice.

p. 2

Legal principles established

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  • It is the primary duty of plaintiffs to take steps to progress their case
  • The test for reinstatement after dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay

Court orders

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  1. 1.The application dated 16th November 2019 seeking reinstatement of the suit is dismissed
  2. 2.Costs of the application to the defendant (dismissed with costs)

Authorities

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Legislation

  • Civil Procedure ActSections 3 & 3A
  • Civil Procedure Rules, 2010Order 12 Rule 7

Cases cited (2)

  • Utalii Transport Company Ltd & 3 Others vs NIC Bank & Another
    (2014) eKLR
  • Ivita v Kyumbu
    (1984) KLR 441
Jurisdiction invoked
Section 3 & 3A of the Civil Procedure Act and Order 12 Rule 7 of the Civil Procedure Rules, 2010

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, "Johnstone Hunter Ambale v Veronica Lunani Matekwa [2020] KEELC 3524 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3524/eng@2020-02-19

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