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ELCAllowedNot stated in the judgment as provided· [2020] KEELC 3728 (KLR)

Philip Mwatu Ithuka v Pascal Kyengo Mutevu & another [2020] KEELC 3728 (KLR)

Environment and Land Court
15 January 2020
3,447 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court reinstated a land case dismissed for delay, confirming that courts can reverse their own dismissals when the delay is honestly explained.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Environment and Land Court at Makueni by Notice of Motion dated 24th June 2019 seeking reinstatement of a suit dismissed on 13th June 2018 for want of prosecution, review/rescission of that dismissal order, substitution of the deceased plaintiff Philip Mwatu Ithuka with Sammy Wambua Ithuka as administrator of the estate, and costs in the cause. The application was brought under Order 24 Rule 3 of the Civil Procedure Rules and Section 13(2) of the Environment and Land Court Act, supported by the Applicant's supporting and supplementary affidavits explaining that letters of administration ad litem had only been obtained in 2019 after the plaintiff's death. The Defendants/Respondents opposed through a replying affidavit of the 1st Respondent, contending prejudice in re-litigating a dismissed suit, that the court was functus officio, and that the Applicant was not properly enjoined. The court directed disposal by written submissions. The Applicant framed four issues; the Respondents framed none. Relying on Order 24 (suit survives the deceased where cause of action survives), Order 17 (discretion over dismissals for want of prosecution) and Article 159(2)(d) of the Constitution, the court held the dismissal order could be rescinded notwithstanding the absence of an express setting-aside provision in Order 17, that the Applicant was properly enjoined by the grant ad litem, and that sufficient cause and explanation for the delay had been demonstrated. The application was allowed in terms of prayers (b), (c), (d) and (e), reinstating the suit, rescinding the dismissal, substituting the administrator as plaintiff, and making costs in the cause.

Key legal issues

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01

Whether the court is functus officio after dismissing a suit for want of prosecution under Order 17

Holding

The court is not barred from reviewing/rescinding its dismissal order because the Civil Procedure Rules are procedural and Article 159(2)(d) requires justice without undue regard to procedural technicalities.

Reasoning

The Respondents argued, relying on Wanjala Mutonga v William Barasa Wanjala, that once a suit is dismissed under Order 17(2) the court becomes functus officio and only an appeal lies. The court rejected this, holding that the rules are procedural, not statutory, and the constitutional command to administer justice without undue regard to procedural technicalities permits the court to exercise its discretion to reinstate the suit where sufficient cause and explanation for delay are shown.

p. 4
02

Whether the Applicant was properly enjoined to make the application

Holding

The Applicant, holding letters of administration ad litem, was properly enjoined to file and prosecute the suit.

Reasoning

The Respondents contended that Sammy Wambua Mwatu was not properly enjoined to make the application. The court noted the misconception that the grant ad litem was issued by the ELC (which lacks jurisdiction to issue grants), but assumed the Senior Principal Magistrate's Court was meant, and held that by virtue of the grant the Applicant was authorized to file and prosecute the suit.

p. 4

Legal principles established

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  • Order 17 of the Civil Procedure Rules is procedural and does not bar the court from setting aside its orders where justice so demands, given Article 159(2)(d) of the Constitution.
  • A court may exercise its discretion to reinstate a suit where sufficient cause for the delay is shown and explained.

Court orders

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  1. 1.The suit dismissed on 13th June 2018 for want of prosecution is reinstated
  2. 2.The order of 13th June 2018 dismissing the suit is reviewed and/or rescinded
  3. 3.The Plaintiff is substituted from Philip Mwatu Ithuka to Sammy Wambua Ithuka, the Administrator of the Estate
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 1
  • Civil Procedure RulesOrder 24 Rule 3(2)
  • Civil Procedure RulesOrder 17 Rule 2(1), (2), (4)
  • Civil Procedure RulesOrder 24 Rule 3
  • Environment and Land Court ActSection 13(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (10)

  • Kishor Kumar Dhanji Varsani vs. Amolak Singh & 4 others
    [2016] eKLR
  • Mehta vs Shah
    [1965] EA 321
  • Mwangi S. Kimenyi vs. Attorney General & Another
    [2014] eKLR
  • Utalii Transport Company Ltd & 3 others vs. NIC Bank & Another
    [2014] eKLR
  • Basil Criticos vs. Third Engineering Bureau of China City Construction Group Company Limited
    [2018] eKLR
  • Wanjala Mutonga vs. William Barasa Wanjala
    [2016] eKLR
  • Raila Odinga vs. Independent Electoral and Boundaries Commission and others (Petition No. 5 of 2013)
  • Allen vs. Alfred McAlphine
  • Birket vs James
  • Agip (Kenya) Ltd
Jurisdiction invoked
Order 24 Rule 3 of the Civil Procedure Rules, Section 13(2) of the Environment and Land Court Act and all other enabling provisions of law

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, "Philip Mwatu Ithuka v Pascal Kyengo Mutevu & another [2020] KEELC 3728 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3728/eng@2020-01-15

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