Eunice Nelima Webo & another v Butlin Luvonga Wekesa (Suing as legal representatives of the Estate of Javan Wekesa Songoi) & Land Registrar Bungoma [2021] KEELC 952 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Proper service of the dismissal notice
There was no service of the dismissal notice upon the plaintiffs' Counsel; the notice bore a firm name and address inconsistent with Counsel's firm, with BUNGOMA cancelled and replaced with ELDORET
The court had directed that notices of dismissal issue and be handed to the Court Bailiff for service. The notice purportedly served bore the name D. L. WERE & CO ADV with BUNGOMA cancelled and replaced with ELDORET, yet Counsel practises as M/S WERE & CO ADVOCATES, Bungoma. Service of process is central to fair hearing under Article 50(1); without proof of proper service, the dismissal could not stand.
Discretion to set aside dismissal for want of prosecution
Setting aside was warranted: the application was filed promptly (one day after service of the bill of costs), there was no delay, and the 1st defendant alleged no prejudice
Applying Ivita v Kyumbu and Jason Mudaki Kivati v David Kenyani Ongusu, the court considers whether delay is inordinate, excusable and whether prejudice results. Here the suit was dismissed on 23rd June 2021, Counsel learned of it on 27th July 2021 and filed on 28th July 2021. The court must aim at saving rather than dismissing suits where a fair trial remains possible under Article 50.
Treatment of grounds of opposition raising matters of fact
Grounds of opposition should address only issues of law; factual matters belong in a replying affidavit, but the court nonetheless treated the grounds as a sufficient reply
The court noted the 1st defendant's grounds of opposition improperly ventilated facts, which should have been by replying affidavit. Rather than treating the application as unopposed, the court invoked Article 159(2)(d) of the Constitution to consider the grounds as a reply on the merits.
Legal principles established
#- Under Order 17 Rule 2(1) of the Civil Procedure Rules, notice before dismissal of a suit idle for one year is not mandatory, and dismissal is discretionary, not automatic
- Where a court directs that notices of dismissal be served on the parties, it is imperative that they be brought to the parties' attention through proper service
- Dismissal for want of prosecution is discretionary and depends on the circumstances of each case, including inordinate delay and prejudice
Court orders
#- 1.This Court's orders issued on 23rd June 2021 dismissing this suit for want of prosecution are set aside
- 2.The matter be mentioned virtually before the Deputy Registrar on 24th November 2021 for purposes of taking a date for hearing
- 3.Costs shall be in the cause
- Jurisdiction invoked
- Sections 3 and 3A of the Constitution and Order 12 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eunice Nelima Webo & another v Butlin Luvonga Wekesa (Suing as legal representatives of the Estate of Javan Wekesa Songoi) & Land Registrar Bungoma [2021] KEELC 952 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/952/eng@2021-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.