Joseph Bulinga Keya v Philip Owino & another [2020] KEELC 3541 (KLR)
The bottom line
#A Kenyan High Court refused to revive a dismissed lawsuit because the plaintiff ignored court notices and did nothing to move their own case forward.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit dismissed for non-attendance should be reinstated
The application for reinstatement was dismissed; the plaintiff's inaction and failure to attend court despite notice justified the dismissal and no grounds for reinstatement were made out
The court perused the file and found the suit was dismissed on 25th June 2019 for non-attendance. After the ruling of 30th May 2019 the plaintiff took no steps to prosecute the matter, and although served to attend court on 25th June 2019, did not. The suit was an old one from 2017. Applying Utalii Transport and Ivita v Kyumbu, the delay was inexcusable and the reasons advanced were unacceptable, so reinstatement was refused.
Burden of prosecuting a suit and the test for reinstatement following delay
The primary duty to progress a case lies with the plaintiff, and reinstatement after prolonged and inexcusable delay is only granted where justice will still be done to both sides
Relying on Utalii Transport Company Ltd & 3 Others v NIC Bank & Another, the court affirmed that plaintiffs bear the primary duty of progressing their case. Relying on Ivita v Kyumbu (Chesoni J), the court applied the test that delay must be prolonged and inexcusable and that justice must be done despite the delay, justice being for both plaintiff and defendant. The plaintiff failed this test on the facts.
Legal principles established
#- It is the primary duty of plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court
- The test for reinstatement after delay is whether the delay is prolonged and inexcusable, and whether justice will be done despite the delay; justice is justice for both plaintiff and defendant
- The decision on whether a suit should be reinstated for trial is a matter of justice and depends on the facts of each case
Court orders
#- 1.The application dated 24th July 2019 seeking reinstatement of the suit is dismissed
- 2.Costs of the application awarded to the respondent/defendant
- Jurisdiction invoked
- Section 5(1) of the Judicature Act Cap 8; Sections 3A, 1A & 1B Civil Procedure Act; Order 51 Civil Procedure Rules (amendment No. 2) 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Bulinga Keya v Philip Owino & another [2020] KEELC 3541 (KLR)", Case Analysis (2020). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3541/eng@2020-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.