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ELCPartially AllowedNot stated in judgment· [2021] KEELC 37 (KLR)

Ezekiel Mwaka Musau & another v National Bank of Kenya [2021] KEELC 37 (KLR)

High Court of Kenya (Environment and Land Division context; judgment styled as delivered at Embu)
24 November 2021
AKA. K. Kaniaru
2,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a land suit against National Bank of Kenya dismissed for delay, but gave the owners only 60 days to get it heard.

What this practically means

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Executive summary

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This was a notice of motion dated 17th May 2021 by the plaintiffs, Ezekiel Mwaka Musau and Eunice Koki Musau, seeking reinstatement of their suit against National Bank of Kenya, which had been dismissed on 11th May 2021 for want of prosecution after neither the plaintiffs nor their counsel attended a notice to show cause hearing. The applicants explained that they believed the matter would proceed virtually, that they logged into the virtual platform without success, and that the court registry's policy of prioritising older matters and the Covid-19 pandemic had impeded them from setting the matter down. The respondent opposed, contending the applicants were indolent, had taken no steps for roughly two years, and that their explanation was inexcusable. Both sides filed written submissions citing authorities on the court's discretion to set aside dismissals. The court framed a sole issue: whether the suit should be reinstated. Applying Order 17 of the Civil Procedure Rules and the inherent jurisdiction under Section 3A, and guided by Shah v Mbogo, John Nahashon Mwangi v Kenya Finance Bank and Ivita v Kyumbu, the court accepted that an attempt had been made to defend the notice to show cause, that the registry policy and pandemic partly explained the delay, and that the prejudice to the plaintiffs, whose land claim was to proceed undefended after the defence was struck out, outweighed that of the respondent. The application was allowed, the suit reinstated on condition that it be set down for hearing within 60 days, with each side bearing its own costs.

Key legal issues

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01

Whether the dismissed suit should be reinstated

Holding

Application allowed; the court found a valid attempt to attend (email to court and virtual login attempts), held the registry's prioritisation policy and the pandemic partly explained the delay, and found prejudice to the plaintiffs greater since the suit was to proceed undefended

Reasoning

The court accepted the applicants made an attempt to defend the notice to show cause, and that the registry's policy of prioritising older matters impeded them. Weighing prejudice, the plaintiffs faced greater prejudice as the suit involved land ownership and was already to proceed undefended. The reasons for non-attendance were found insufficient but the balance of justice favoured reinstatement.

p. 3

Legal principles established

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  • Reinstatement of a suit after dismissal for want of prosecution is a matter of judicial discretion, to be exercised to avoid injustice, weighing the prejudice to each party
  • A plaintiff has a duty to prosecute the suit expeditiously and take steps to set it down for hearing
  • Dismissal for want of prosecution is a draconian measure to be exercised cautiously since it drives a party from the seat of justice

Court orders

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  1. 1.The suit dismissed on 11th May 2021 for want of prosecution is reinstated
  2. 2.Each side to bear its own costs
  3. 3.Applicants to set down the matter for hearing within the next 60 days, failing which the suit shall stand dismissed

Authorities

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Legislation

  • Civil Procedure Act Cap 21Sections 1A, 1B, 3A
  • Constitution of KenyaArticle 159; Article 50
  • Civil Procedure Rules, 2010Order 17 rule 3; Order 12 rule 3(1); Order 51 rule 15

Cases cited (9)

  • Mohan Galot Vs Walter Omosa Nyakundi & 21 Other (Interested parties)
    2020 eKLR
  • Wachira Karani Vs Bildad Wachira
    (2016) eKLR
  • Jim Rodgers Gitonga Njeru Vs Al Hussain Motors Limited & 2 Others
    2018 eKLR
  • Utalii Transport Company Limited & 3 Others Vs NIC Bank & Another
    [2014]
  • Edney Adaja Ismail Vs Equity Bank Ltd
    2014 Eklr
  • Savings and Loan Limited Vs Susan Wanjiru Muritu
    Nairobi (Milimani) HCCS No. 397 of 2002
  • Shah -vs- Mbogo & Another
    (1967) EA 1116
  • John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation)
    [2015] eKLR
  • Ivita Vs Kyumbu
    [1984] KLR 441
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act Cap 21; Article 159 of the Constitution of Kenya

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, "Ezekiel Mwaka Musau & another v National Bank of Kenya [2021] KEELC 37 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/37/eng@2021-11-24

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