Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the judgment (appeal against ruling of 28.12.2018)· [2021] KEELC 762 (KLR)

Francis Mukunja (Suing as the legal representative of the estate of Miriti Kaburi alias M’Miriti Kiabure alias Stephen Miriti – (Deceased) v M’Rungento Mbogori & another [2021] KEELC 762 (KLR)

Environment and Land Court
24 November 2021
1,301 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan landowner lost his appeal because he let his land case sit idle for over a year, and the court refused to revive it.

What this practically means

#

Executive summary

#
The appellant, as legal representative of the estate of Miriti Kiaburu, had sued the respondents in the lower court alleging fraudulent subdivision of parcels Abothuguchi Gaitu/69 and Abothuguchi/Ruiga/1012 and sought cancellation of the resulting titles and reversion to the deceased's name. His interlocutory application for inhibition and temporary injunction was dismissed on 11.3.2016, after which he took no steps to prosecute the suit. On a notice to show cause under Order 17 rule 2, the suit was dismissed for non-prosecution on 30.8.2018 with costs, and a subsequent application for review was rejected by a ruling of 28.12.2018. The appellant appealed, arguing that mistakes of counsel should not be visited on an innocent party, that he was denied a fair hearing and substantive justice given triable issues, that he was not served with the notice to show cause, and that as a legal representative he should not have been condemned to pay costs. The Environment and Land Court (C.K. Nzili, ELC Judge) re-evaluated the lower court record as a first appeal. It found the delay of over a year unexplained, the supporting affidavit silent on the dismissal, and no affidavit from former counsel explaining the delay. It further held that the appellant did not deny that the suit property titles flowed from an unappealed High Court decree, rendering the suit res judicata and giving him no prospects of success. Service was not denied and no cross-examination of the process server was sought. The court affirmed that costs follow the event under Sections 27 and 28 of the Civil Procedure Act and that no law exempts relatives from paying costs to successful relatives. The appeal was dismissed with costs.

Key legal issues

#
01

Dismissal for want of prosecution under Order 17 rule 2

Holding

The trial court properly exercised its discretion; the appellant took no steps for over a year after the dismissal of his injunction application and gave no explanation for the delay

Reasoning

The court applied Order 17 rule 2 and the Ivita test, finding the delay inordinate and unexplained. The supporting affidavit was silent on the dismissal for non-prosecution, counsel on record swore no affidavit explaining the delay, and the appellant did not say what steps he took to follow up his case with his advocates.

p. 2
02

Res judicata and prospects of success

Holding

The appellant did not deny that the resultant titles flowed from a High Court decree that had not been appealed or set aside, so reinstatement would be futile

Reasoning

The respondents raised res judicata and abuse of process; the appellant did not controvert that the titles emanated from a High Court decree. That decree bound the trial court, meaning the appellant had no prospects of success even if the suit were reinstated.

p. 2
03

Service of the notice to show cause and mistake of counsel

Holding

Service was not denied and no cross-examination of the process server was sought; no counsel affidavit explained the delay, so mistake of counsel could not avail the appellant

Reasoning

The appellant alleged he was unaware of the notice and did not know the process server but never applied to cross-examine the process server. His former lawyer swore no affidavit explaining the delay, and the supporting affidavit did not state that any mistake was attributable to counsel.

p. 2
04

Costs against the legal representative

Holding

The appellant initiated the suit himself and is a proper party liable to pay costs; costs follow the event under Sections 27 and 28 of the Civil Procedure Act

Reasoning

The lower court record showed the appellant initiated the suit in his capacity as legal representative, so he cannot disclaim the costs liability. The court held law is value neutral and does not exempt relatives or friends from paying costs to successful relatives or friends.

p. 2

Legal principles established

#
  • Suits should be prosecuted diligently failing which they face dismissal for want of prosecution under Order 17 rule 2
  • The Ivita test: delay must be prolonged and inexcusable and justice must still be capable of being done despite the delay
  • Costs follow the event under Sections 27 and 28 of the Civil Procedure Act; no rule exempts relatives from paying costs to successful relatives
  • An unappealed High Court decree is binding on the trial court

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondents

Authorities

#

Legislation

  • Civil Procedure ActSection 39
  • Civil Procedure ActSections 27 & 28
  • Civil Procedure RulesOrder 17 rule 2 (and rule 2(3))
  • Civil Procedure RulesOrder 17 rule 3
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Selle V Associated Motor Boat Company Ltd.
    [1968] EA 123
  • Nilesh Premchand Mulji Shah & Premchand Mulji Shah t/a Ketan Emporium –vs- M.D. Popat and others & Dayalal Bhanji & Sons Ltd.
    [2016] eKLR
  • Ivita –vs- Kyumbu
    [1984] KLR 441
  • George Gatere Kibata –vs- George Kuria Mwaura & another
    [2017] eKLR
  • Jimmy Mutuku Kiamba –vs- Nation Media Group Limited & 2 others
    [2020] eKLR
  • Nzoia Sugar Co. Ltd –vs- West Kenya Sugar Ltd.
    [2020] eKLR
  • Bushani Development case
On appeal from
Magistrates' Court (trial court, Meru)
Suit Nos. 1908, 1909 and 1910 (Parcel No. 1909 later subdivided into 2389 and 2390)
Jurisdiction invoked
First appeal from the lower court under Section 39 read with Order 17 rule 2 of the Civil Procedure Act and Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Francis Mukunja (Suing as the legal representative of the estate of Miriti Kaburi alias M’Miriti Kiabure alias Stephen Miriti – (Deceased) v M’Rungento Mbogori & another [2021] KEELC 762 (KLR)", Case Analysis (2021). Not stated in the judgment (appeal against ruling of 28.12.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/762/eng@2021-11-24

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