Juliana Muthoni Kitololo v Housing Finance Company of Kenya Limited [2020] KEELC 3829 (KLR)
The bottom line
#A Kenyan land court refused to throw out a stalled case because the parties had been actively negotiating a settlement during the delay.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) and (3) of the Civil Procedure Rules
The application for dismissal was declined because the delay was explained by ongoing settlement negotiations culminating in a signed letter of agreement dated 25th February 2019, and the delay was not inordinate.
The court applied the Ivita v Kyumbu test and the factors in Mwangi S. Kimenyi, holding that the parties were negotiating out of court and had signed a settlement letter agreeing to record a consent marking the suit as settled. Dismissal would therefore cause no injustice to the Defendant, who had already set the terms of settlement accepted by the Plaintiff. Substantive justice favoured setting the suit down for hearing or recording the consent.
Whether summons to enter appearance were taken out by the Plaintiff
Summons to enter appearance were taken out and signed by the Deputy Registrar on 21st July 2017; the Defendant entered appearance on 24th July 2017 and participated in the proceedings.
Although the affidavit of service did not expressly confirm service of summons, the court file showed summons were issued and signed on 21st July 2017, and the Defendant entered appearance and filed a replying affidavit and submissions. The Defendant's allegation therefore failed, and the Plaint raised triable issues with no prejudice shown.
Legal principles established
#- The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay.
- The power to strike out pleadings must be sparingly exercised and only in the clearest of cases.
Court orders
#- 1.The Defendant's Notice of Motion dated 20th March, 2019 seeking dismissal of the suit for want of prosecution is declined
- 2.Parties directed to record the agreed consent as per the terms in the Defendant's letter dated 25th February, 2019 within 30 days from the date of the ruling, failing which the suit should be set down for hearing on its merits
- 3.Costs in the cause
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act and Order 17 Rule 2(1) & (3) and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juliana Muthoni Kitololo v Housing Finance Company of Kenya Limited [2020] KEELC 3829 (KLR)", Case Analysis (2020). ELC Suit 819 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3829/eng@2020-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.