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ELCDismissedELC Suit 819 of 2017· [2020] KEELC 3829 (KLR)

Juliana Muthoni Kitololo v Housing Finance Company of Kenya Limited [2020] KEELC 3829 (KLR)

Environment and Land Court
3 February 2020
1,815 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a ruling on the Defendant's Notice of Motion dated 20th March 2019, brought under Sections 1A and 3A of the Civil Procedure Act and Order 17 Rule 2(1) & (3) and Order 51 of the Civil Procedure Rules, seeking dismissal of ELC Suit 819 of 2017 for want of prosecution. The Defendant argued that the suit was last in court on 25th January 2018 when the Plaintiff's injunction application was dismissed, that no steps had been taken since, and that summons to enter appearance had never been taken out. The Plaintiff, through the replying affidavit of Juliana Muthoni Kitololo, explained that the parties had been in direct settlement negotiations culminating in a letter dated 25th February 2019 signed by both parties, agreeing on settlement terms including recording a consent marking the suit as settled. The court framed a single issue: whether the suit should be dismissed for want of prosecution. Applying the Ivita v Kyumbu test and the factors in Mwangi S. Kimenyi, the court found the Plaintiff's explanation plausible and the delay not inordinate, since the parties were negotiating settlement. On summons, the court file showed summons were taken out and signed by the Deputy Registrar on 21st July 2017, and the Defendant entered appearance on 24th July 2017 and participated in the proceedings. The Plaint raised triable issues and no prejudice to the Defendant was demonstrated. Relying also on Ramji Megji Gudka and the overriding objective under Section 3 of the Environment and Land Court Act, the court declined to dismiss the suit, directed the parties to record the agreed consent within 30 days failing which the suit would proceed to hearing, and ordered costs in the cause.

Key legal issues

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01

Whether the suit should be dismissed for want of prosecution under Order 17 Rule 2(1) and (3) of the Civil Procedure Rules

Holding

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.

Reasoning

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.

p. 2
02

Whether summons to enter appearance were taken out by the Plaintiff

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Defendant's Notice of Motion dated 20th March, 2019 seeking dismissal of the suit for want of prosecution is declined
  2. 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. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A
  • Civil Procedure RulesOrder 17 Rule 2(1) & (3)
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 5 rules 1 and 6
  • Environment and Land Court ActSection 3

Cases cited (7)

  • Azhar Mohammed Sheikh & 8 Others V Velji Narshi Shah & Another
    (2017) eKLR
  • Leonard Njogu V Barclays Bank of Kenya & Another
    (2014) eKLR
  • Auni Bhaiji & 4 Others V Chief Magistrate Milimani Courts & 2 others
    (2017) eKLR
  • Mwangi S. Kimenyi V Attorney General & Another
    (2014) eKLR; Civil Suit Misc. No. 720 of 2009
  • Ivita -vs- Kyumbu
    (1984) KLR 441
  • RAMJI MEGJI GUDKA LTD –Vs- ALFRED MORFAT OMUNDI MICHIRA & 2 OTHERS
    [2005] eKLR
  • DT DOBIE & COMPANY (KENYA) LTD. V. MUCHINA
    [1982] KLR 1
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

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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, "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.